1 APPLN-441.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.441 OF 2011 Satendra Uday Pratap Singh .... Applicant Vs. State of Maharashtra & Anr. .... Respondents S/Shri M.N. Nazmi i/b Rajiv Deokar for the Applicant. Ms P.P. Bhosale, APP, for the State. CORAM: R.C. CHAVAN, J. DATED: JULY 19, 2011 P.C: 1. This is an application for leave to file appeal against the judgment of acquittal of the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, rendered by the learned Metropolitan Magistrate, 7th Court, Dadar, Mumbai. 2. The applicant is the brother of the accused. The accused-sister lost her husband sometime in the year 2008. Her husband was running a wine shop. After the demise of her husband, the applicant seems to have stepped in only to help her. Disputes arose. The applicant 2 APPLN-441.11 filed a suit in the Court of Small Causes on 11-11-2009, yet he claims that on 30-12-2009 the accused issued a cheque in the sum of Rs.59,00,000/- towards various amounts which the applicant claims to have been paid towards the business dues of the accused. The learned Magistrate refused to believe this observing that it was highly improbable that the accused would issue a cheque for Rs.59,00,000/- when litigation between the parties had already begun. The learned counsel for the applicant may be right in submitting that there cannot be any legal proposition that during the pendency of litigation the parties thereto cannot issue any cheque to each other. But then such cheques would be issued only if there is some sort of a settlement or talks of settlement. Here the complainant does not come up with any case of settlement, rather what transpires is that the complainant had not only not stopped at filing a suit in the Court of Small Causes but had also filed a suit in the City Civil Court and also taken the matter before the Excise Commissioner for allowing him to continue to run the liquor business as a servant. In view of this, it cannot be said that the learned Magistrate erred in acquitting the respondent. The accused had rebutted the presumption that 3 APPLN-441.11 the cheque was not issued for any legally enforceable debt or liability. The view taken by the learned Magistrate is proper. Therefore, leave refused. Appeal dismissed. The application accordingly stands disposed of. (R.C. CHAVAN, J.)