IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 521 OF 2008 CRIMINAL APPLICATION NO. 521 OF 2008 CRIMINAL APPLICATION NO. 521 OF 2008 Tribhuvannath Shivdular Tiwari .... Applicant versus Ratnakar Vittal Shetty ...... Respondent. Shri A.B.Sharma & D.S.Gautam for the applicant Mrs. P.P.Shinde APP for State. CORAM; A.P. DESHPANDE, J. CORAM; A.P. DESHPANDE, J. CORAM; A.P. DESHPANDE, J. DATED; 5TH MARCH, 2008 DATED; 5TH MARCH, 2008 DATED; 5TH MARCH, 2008 P.C.; P.C.; P.C.; 1. This is a criminal application filed by the original complainant for seeking special leave to file an appeal against the order of acquittal passed by the Magistrate. The applicant filed a complaint under section 138 of Negotiable Instrument Act against the accused. It is contended in the complaint that the applicant is an advocate by profession and looking after the tax matters of the respondent, he being a tax consultant. The complainant claims to be acting as an advocate for the respondent and handling the matters pertaining to taxation. The complainant averred that he had paid a sum of Rs. 7, 50,000/- to the respondent by way of hand loan. The amount is said to have been paid in cash on 10-4-2006. For recovery of the said amount, three cheques dated 20-12-2006 in the sum of Rs.3,00,000/- Rs. 3,00,000/- and Rs. 1,20,000/- respectively were issued. Barring these three cheques, there is no other document indicating the actual payment of the amount by the complainant to the accused. 3. The complainant has not led any evidence to indicate that he was in possession of cash of Rs. 7,50,000/- when he allegedly paid the amount to the accused. The case of the accused is that he had borrowed a total sum of Rs.1,50,000/- which amount was paid in three intalments, one each of Rs.50,000/- and for securing the said repayment the three blank cheques were issued. The trial court on appreciation of the evidece, in the light of the relationship of Advocate and client between the complainant and the accused, has dismissed the complaint by holding that the case put forth by the accused is more probable. The accused had taken a consistent defence right when he replied the notice issued by the complainant under section 138. In view of the existence of relationship of tax cosultant and client between the complainant and the accused, the burden would be on the complainant, he being in a position to dictate the will of the accused to establish passing of consideration, for recovery of which, the three cheques are allegedly issued. 4. Perused the impugned order, passed by the trial court which goes to take a possible view of the matter and which does not call for any interference at the hands of this court. In the result, the application is rejected. .....