1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 1134 of 2008 Subhash K. Ramani..vs.. Shrikishan Rampal Agrawal -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Memoranda of Coram, appearances, Court's orders or directions : Court's or Judge's orders and Registrar's orders. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Shri P. N. Mehta, Advocate for applicant. CORAM : A. H. JOSHI, J. DATE : 17th June, 2008 1. This is an application for leave to appeal. The applicant's complaint has been dismissed and the accused has been acquitted. 2. The complainant had not filed initially, however, tendered perusal of Court, copy of complaint as well as copy of oral evidence of the complainant. 3. The complainant had filed complaint of offence punishable under Section 138 of Negotiable Instruments Act, alleging that the complainant is doing a business of Vehicle Finance at Gondia. The accused and the complainant are very well acquainted with each other, due to which, the accused approached to the complainant and requested for financial help by way of hand loan of Rs. 19,000/- which he had given to him on 09/05/2003 and was obtained promissory note and post dated cheque No. 035742 dated 9/7/2003 drawn on Syndicate Bank. The cheque had been dishonoured. According to the complainant, the notice of dishonour, which was sent, was served and acknowledgment of the said notice dated 16/7/2003 was received. The accused did not reply as well did not pay, hence he filed a complaint. 4. The complainant filed affidavit of evidence reiterating averment contain in the complaint. 2 5. In the cross examination, however, following things revealed:- (i) The notice of dishonour was not received by the accused, but was received by his father. (ii) He admitted that the complainant is proprietor of the firm namely K. K. Finance Company. (iii) He denied suggestion that the hand writing on promissory note and the cheque was of himself. (iv) That he does not know what was stated in para 5 of the affidavit. (v) He denied that he had any cheque transaction with the accused. 6. The accused examined himself and four witnesses. 7. The testimony of Assistant Bank Manager, Syndicate Bank, namely Shri Vijay K. Ramteke is on record. This testimony reveals that four cheques on the account were already issued to K. K. Finance Company, which is a firm of which the complainant is partner. 8. The learned trial Judge after appreciation of evidence came to the conclusion that though the complainant had denied past transactions, these past transactions by cheques between the accused and the complainant was proved. 9. The complainant's case that the cheque was issued as existing liability, was not proved. On the other hand, the defense of the accused about the cheque being secured by the accused was raised to the preponderance of probabilities 10. Learned Advocate for the applicant placed reliance on various judgments namely :- (a) Yogendra B. Sachdev ..vs. State of Mah. and another 2003(2) B Cr C 89, (b) Ramprasad Saha ...vs.. Kamal Kumar Talukdar & anotherIII (2004)BC 237 (c) V. Vathsan And etc ..vs.. K. K. Japahari and another 3 2004(2) B Cr C 1, (d) M.V. Srinivasa Prasad ..vs.. State op A. P. and another II(1999) B C 8 and (e) Prabhakar D. Naik ..vs.. Jerry S. Viegas and another 2002 (1) B Cr C 812. 11. Based on these judgments, learned Advocate urge that the complainant was permitted by presumption under Section 118 of the Negotiable Instruments Act and he had no duty to prove. 12. Learned Advocate further argued that how the duty of complainant to prove accused liability, can be over come when by virtue of facts that the preponderance of probabilities was raised by the accused. 13. Would the complainant duly proved this fact, the learned Advocate for the applicant has no reply. He, however, does not dispute the legal position as he emerged from the judgment of Prabhakar D. Naik ..vs.. Jerry S. Viegas and another 2002 (1) B Cr C 812. Whether this Court took a view that the accused is required to rebut presumption only by preponderance of probabilities. 14. In these premises, the impugned judgment which is based on strongest preponderance of probabilities emerging from the evidence of the accused, destroys the evidence of complainant. Moreover, the case of untrustworthiness is made out, in view of his having suppressed the fact before the Court that he denied transaction with accused, while transaction of the complainant and accused are duly proved. 15. In these circumstances, the application has no merit and is dismissed. JUDGE andurkar.