1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3855/2010 Bhimashankar s/o Bapurao Bhute Applicant [original complt.] V E R S U S Vinsentpal P.J.S.Nadan Respondent [original accused ] Shri P.N.Kalani, Advocate for applicant. Shri S.K.Adkine, Advocate for the respondent. CORAM : SHRIHARI P. DAVARE, J. DATE : 22 nd JUNE, 2011. PER COURT : 1. Heard learned respective counsel for the parties. 2. This is an application preferred by the applicant (original complainant) seeking leave to file appeal challenging the judgment and order dated 13.7.2010, rendered by learned Judicial Magistrate First Class Manwat in SCC No.426/2008, thereby acquitting the respondent/original accused for the offence punishable under 2 section 138 of Negotiable Instruments Act. 3. Complaint filed by the complainant appears to have been dismissed on two counts i.e. firstly complainant allegedly failed to prove and establish that cheque is allegedly issued towards discharge of legally enforceable debt and secondly, that complaint was barred by the provisions of limitation. 4. As regards first point, after perusal of the impugned judgment it appears that after considering oral and documentary evidence on record, learned trial court has not considered aspect that initial presumption under section 118 (a) and 139 of the Negotiable Instruments Act was in favour of the complainant. Moreover, it also appears that although accused raised defence that disputed cheque was stolen from his shop and admittedly he has not filed any police complaint, and apparently it appears that accused has not probabilized his defence and has not rebutted the presumption on preponderance of probability, but the said aspect was not considered by the trial court in proper perspective. Hence, the matter requires consideration in that respect. 3 5. As regards second aspect of Limitation is concerned, it appears that learned trial court has not considered that filing of complaint before him was the Re-presentation of the complaint and not fresh presentation of complaint and applicant relied upon the judicial pronouncement Division Bench of Madras High Court in the case of Vinayagam and others Vs. Dr.Subhash Chandran and etc. reported at 2000 CRI.L.J.1579. Hence, matter requires consideration in that respect also. 6. Accordingly, present application seeking leave to file appeal is allowed and present application be treated as APPEAL. 7. ADMIT. 8. Mr. Adkine learned counsel for the respondent waives service of notice after admission. Respondent to furnish same bail but to execute fresh P.R. Bond before the trial court, within FOUR WEEKS. 9. Hearing of the appeal is expedited. ( SHRIHARI P. DAVARE ) JUDGE aaa/3855.10 ****