1 appln 254 of 2011 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.254 OF 2011 Print Image .. Applicant. -versus Mrs. Neeta Arvind Deodhar and anr .. Respondents. Mr. Kunal Bhange, i/b Mr.Mohan RP Rao, for the Applicant. Mrs. M.M. Deshmukh, APP for the Respondent State. Mr. Omkar Joshi i/b Mr. Rajesh P. Behare, for original complainant. CORAM: R.C. CHAVAN, J. DATED: 22nd July, 2011 P.C. 1. This is an application for leave to file appeal against acquittal of the respondent for the offence punishable under Section 138 of the Negotiable Instrument Act, ordered by the learned Metropolitan Magistrate 62nd Court, Dadar, Mumbai, for the offence punishable under Section 138 of the Negotiable Instruments Act, The learned Judge held that on the day when the cheque was issued i.e. on 2nd January, 2007, for a sum of Rs.7,10,000/- accused was not liable to pay the said amount to the complainant, even according to recitals in the complaint itself. This amount of Rs.7,10,000/- was shown to have been made up by payments on different dates. A sum of Rs. 1,00,000/-was paid subsequently Rs.75,000/- on 22nd 2 appln 254 of 2011 February, 2007 and Rs.25,000/- 22nd March, 2007. Now it is settled proposition of law that the burden to rebut presumption can be discharged by the accused even without stepping into witness box by cross examining himself or by other material. In this case, complainant himself had provided sufficient material in the complaint itself by admitting that on the date on which cheque of Rs.7,10,000/- was issued, sum of Rs.7,10,000/- had not at all been paid by the complainant to the accused. In view of this it cannot be said that the learned Magistrate erred in holding that the complainant had not proved ingredients of section 138 of the Negotiable Instruments. Reliance on judgment in Yavatmal District Mahesh Urban Co-op Soc Ltd -vs- Narayanrao Ukandrao Paikrao, 2011 TLMHH 743, Criminal Appeal No.576 of 2008 decided on 6th June, 2011, at Nagpur Bench, is misplaced since in that case the amount of cheque included the amount advanced and accumulated. In view of this leave refused appeal dismissed. (R. C. CHAVAN, J.)