1 appln 2462 of 2010 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICTION NO.2462 OF 2010 Bipico Industries(Tools Pvt. Ltd. .. Applicant. -versus M/s Essar Tools & ors .. Respondents. M/s Subodh Desai, Advocate for the Applicant. Mrs. M.M. Deshmukh, APP for the Respondent State. Mr. Sanjay Bhatia, Advocate for Respondent Nos.1 and 2. CORAM: R.C. CHAVAN, J. DATED: 8th August, 2011 P.C. 1. This is an application for leave to file appeal against judgment of the acquittal by learned Additional Sessions Judge, Greater Mumbai, reversing the conviction of the respondent Nos 1 and 2, for the offence punishable under Section 138 of the Negotiable Instruments Act, recorded by the learned Metropolitan Magistrate, 23rd Court, Esplanade, Mumbai. 2. Learned Additional Sessions Judge has held that the documents which the complainant wanted to rely on, had not been properly proved before the trial court. Learned Additional 2 appln 2462 of 2010 Sessions Judge next held that the complainant failed to prove that the amount mentioned in the cheque was recoverable because the complainant had not been permitted by the trial Court to produce the extract of account which the complainant was ready to produce. 3. If according to learned Judge, the trial Court had committed a mistake in not permitting the complainant to produce documents, the proper course would have been for the learned Judge either to allow the complainant to produce extract of accounts before him or to remand the matter to the trial Court, to have the documents produced and decide matter afresh. In any case, the finding that holder of cheque should prove that the amount was due is itself doubtful and would require reconsideration, particularly in view of the judgment in Rangappa -vs- Mohan, reported in (2010) Cri. L. J. 2871, which reinforces the presumption of the existence of legally enforceable liability under Section 139 of the Negotiable Instrument Act. The reliance placed by the learned counsel for the respondent Nos 1 and 2, on the judgment of Supreme Court in Krishna Janardan Bhat -vs- Dattatraya G. Hegade, reported in 2008 Cri. L. J. 1172, is misplaced since three Judges Bench of Supreme Court in Rangappa -vs- Mohan, (supra), has held that the observations in Krishna Janardan Bhat's case about presumption not extending to legally enforceable liability is not correct. If there is a 3 appln 2462 of 2010 presumption in respect of existence of legally enforceable liability, obviously the burden would shift to the accused to rebut that presumption. 4. The learned counsel for the respondent also placed reliance on the judgment of Rahul Builders -vs- Arihant Fertilizers and Chemical and anr reported in 2008 Cri. L J 452. This judgment is about service of notice strictly in terms of proviso appended to Section 138 of the Act. However, in view of judgment in C.C. Alavi Haji -vs- Palapetty Muhammed and anr, reported in (2007) 6 Supreme Court Cases 555, significance of notice is substantially reduced. Learned counsel for the respondent has also relied on the judgment of Supreme Court in Suraj Mal -vs- State of Delhi, reported in 1979 AIR (SC)-0-1408, which is in respect of appreciation of evidence in cases under Prevention of Corruption Act. In any case, there cannot be any ratio of any Court in respect of appreciation of evidence. This duty is to be performed by the Court before whom witnesses are examined. As far as judgment of M.S. Narayana Menon alias Mani -vs- State of Kerala and anr reported in 2006 AIR SCW 4652, is concerned, since the complainant was always ready to produce books of accounts which the Trial Court, had not permitted to do, no fault can be found with the complainant. In view of this the entire judgment of learned Sessions Judge requires reconsideration and reexamination. 4 appln 2462 of 2010 Leave granted. Appeal Admitted. Call for Record and Proceeding. Action under Section 390 of Code of Criminal Procedure Code, 1908. (R. C. CHAVAN, J.)