1 crapn2879.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2879 OF 2010 Nagar Taluka Shramik Seva Sangh, Through Mr. Vilas s/o. Keshav Deo, Occ: Service, R/o. Walki, Tq. & Dist. Ahmednagar. ...APPLICANT VERSUS Pandurang Dhondibhau Gunjal, Age: 30 years, Occ: Contractor, At Post Nimgaon Paga, Tq. & Dist. Ahmednagar. ...RESPONDENT ... Mr. N.V. Gaware, Advocate for applicant. Mr.Balaji S. Shinde, Advocate holding for Mr. V.P. Latange, Advocate for respondent sole. ... CORAM: S.S. SHINDE, J. DATE : 22ND FEBRUARY, 2011 PER COURT : Heard learned A.P.P. for the applicant and learned Counsel for the respondent. 2 crapn2879.10 2. Learned Counsel for the applicant invited my attention to the facts of the case and submitted that, the complainant produced documentary evidence on record i.e. copy of notice at Exhibit-19, acknowledgment receipt at Exhibit-20, surety bond at Exhibit-7 filed on behalf of the accused, cash vouchers at Exhibits-59 and 61, disputed cheque at Exhibit-16, bank letter at Exhibit-17, bank memo at Exhibit-18, resolution at Exhibit-15, counter foil at Exhibit-37 and cash vouchers at Exhibits-36, 40 and 42. 3. Learned Counsel for the applicant also invited my attention to Para-15 of the impugned judgment of the trial Court and submitted that, to establish the agreement executed between the complainant and the accused, the complainant has examined Mr. Nivrutti Jape who is a Account Clerk of the complainant's office. It has come in his evidence at Exhibit-33 that, the complainant has paid advance amount of Rs.50,000/- to the accused 3 crapn2879.10 on 10-10-2005. The complainant has also paid advance amount of Rs.3,000/- on 25-12-2005 and Rs.5000/- on 27-12-2005. Amount of Rs.10,000/- has been paid to the accused by cheque No.194585. As such, the complainant has paid total advance amount of Rs.68,000/- to the accused. The Court has accepted the case of the complainant that the cash vouchers at Exhibits-36, 40 and 42 show that amount of Rs.58,000/- has been paid to the accused. 4. According to learned Counsel for the applicant, the respondent did not enter into witness box. He has not discharged the burden as contemplated under the provisions of Section 139 of the Negotiable Instruments Act. The defence taken by the respondent was that, he has not issued the disputed cheque. It is admitted position that the respondent was not entered into witness box. Therefore, Counsel for the applicant would submit that the matter requires consideration. 4 crapn2879.10 5. On the other land, learned Counsel for the respondent submitted that, when issuance of cheque was disputed by the respondent, it was not necessary for the respondent to step into the witness box. The possible defence was taken by the respondent. Learned Counsel, in support of his contention, placed reliance on the judgment of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat vs. Dattatraya G. Hegde reported in 2008 ALL MR (Cri.) 1164 (S.C.) and more particularly, Para-23 of the said judgment. Relying on the said judgment, learned Counsel for the respondent would submit that it was not necessary for the respondent to enter into witness box and therefore, the application is devoid of merits and same deserves to be rejected. 6. I have given due consideration to the submissions of the learned Counsel for the parties. I have also perused the judgment of the Hon'ble Supreme Court and also provisions of 5 crapn2879.10 Section 139 of the Negotiable Instruments Act. In the facts of this case, when the applicant approached the Court with specific allegation and by producing the documents on record showing that, the amount of Rs.58,000/- was advanced to the respondent, in the facts of this case, it was incumbent upon the respondent to rebut the presumption/discharge burden under Section 139 of the Negotiable Instruments Act. Merely by taking defence that the cheque was not issued, is of no avail in the light of observation by the trial Court in Para-10 of the impugned judgment. The trial Court has accepted the case of the complainant to the extent that the complainant has paid total advance amount of Rs.58,000/- to the accused. Therefore, in my opinion, the case is made out for granting leave to appeal. 7. Hence, the application seeking leave to appeal is allowed and disposed of. 8. Registry is directed to register the 6 crapn2879.10 appeal. 9. On registering the appeal, Admit. 10. On admission of the appeal, learned Counsel waives service for respondent. [ S.S. SHINDE, J.] sut/feb11/crapn2879.10