1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5146 OF 2010 Rajendra Vishwanath Sandhan .Applicant V/s. Nitin Namdeo Rahane & anr. .Respondents Mr.R.N.Gite, Advocate, for the Applicant Mr.Sugandh Deshmukh, Advocate, for Respondent No.1 Smt.V.R.Bhosale, APP, for Respondent No.2 - State CORAM : R.C.CHAVAN, J. DATE : 15TH DECEMBER, 2011 P.C. . Heard the learned counsel for the respective parties. 2. This is an application for leave to file an appeal against acquittal of respondent No.1 ordered by the learned Judicial Magistrate F. C., Nashik for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 holding that the complainant failed to 2 prove that he had sufficient income to advance a sum of ` 2,12,000/- to the accused. The learned counsel for the applicant states that the learned Magistrate believed what was recorded in the deposition that the complainant's income was ` 3,000/- per month. The complainant is working with Telecom department and receiving ` 30,000/- per month and not ` 3,000/- per month. In any case, monthly income is not relevant. Moreover, it is not necessary for the complainant to show the source from which he got money, since casting such a burden on the complainant would reduce the presumption under Section 139 of the Negotiable Instruments Act, 1881 to a naught. The defence of the accused was that he had kept a signed cheque of ` 12,000/- on the Teapoy in the hall of his house for his household expenses and the applicant misused that cheque. Ordinarily, a person would not leave signed cheque on the Teapoy in the hall of his house without mentioning the name of payee at least or 3 atleast writing that cheque was drawn for self, if sum was to be withdrawn for household purpose. The learned magistrate should have gone through these things. Therefore, the Judgment would require re-consideration. Leave granted. Admit. Call for R & P. Action under Section 390 dispensed with, since the learned counsel for respondent No.1 states that since respondent No.1 is represented by him, action under Section 390 may be dispensed with. (R.C.CHAVAN, J.)