-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.5005 OF 2004 APPLICATION NO.5005 OF 2004 APPLICATION NO.5005 OF 2004 Shamit M. Mehta ...Applicant vs. B.A.Patel and others ...Respondents Mr.Madhukar Dalvi for the Applicant Mr.A.S.Shitole, A.P.P. for State Mr.S.J.Mishra i/b Mr.S.R.S.Legal for Respondent Nos.1 & 2. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : DECEMBER 15,2006. : DECEMBER 15,2006. : DECEMBER 15,2006. P.C.: P.C.: P.C.: 1. The submissions of the Advocates for the parties were heard on the last date. Today further submissions were heard. This is an Application for special leave to prefer an Appeal under sub section 4 of section 378 of the Code of Criminal Procedure,1973. By a Judgment and Order dated 5th July 2002, the learned Trial Judge acquitted the first and second Respondents of the offence under section 138 read with section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act of 1881). The case of the Applicant/complainant was based on an agreement dated 11th March 1996 to which the applicant and the second Respondent are parties. The case of the Applicant is that the first Respondent approached him in March 1996 and gave a proposal to invest money in the second Respondent-Company. It was represented to the Applicant that the second Respondent will come out with an issue and that if the Applicant invests money, the shares will be repurchased by the first and second -2- Respondent at the rate of Rs.4.50/- per share. According to the case of the complainant, he paid a sum of Rs.5,50,000/- in cash to invest the same in public issue of the second Respondent for purchasing two lakh shares at the rate of Rs.2.50 per share. According to the Applicant, in terms of the agreement, a post dated cheque in the sum of Rs.9,90,000/- was issued by the second Respondent representing the purchase price of the shares at the rate of Rs.4.50 per share. The said cheque was dishonoured and the complaint was filed. 2. The learned Judge has recorded a finding that the Applicant did not invest any amount by applying for shares and there was no allotment of shares to him. Therefore, a conclusion is drawn that there was no legally enforceable liability. 3. The learned Advocate for the Applicant invited my attention to sections 118 and 139 of the said Act of 1881. Relying on the decision of the Apex Court in case of K.N.Beena Vs. Muniyappan and another (2001 8 S.C.C. page 458), he submitted that there is a presumption that the cheque was issued in discharge of debt or liability and it is for the accused to rebut the presumption by proving the contrary. He submitted that mere denial is not sufficient to rebut the statutory presumption. -3- 4. The learned Advocate for the first and second Respondent submitted that the evidence of the Applicant himself is sufficient to rebut the presumption and therefore, the learned Judge was right in passing the order of acquittal. 5. I have considered the submissions. Clause 1 of the Agreement dated 11th March 1996 records thus : 1) The party of the Second Part hereby invests in the public issue of "JIGAR PROJECTS LIMITED" a sum of Rs.5,00,000/- [Rupees five lakhs only] towards application money for 2,00,000/- shares @ Rs.2.50per share and the party of the first part hereby agrees to purchase back the equity shares allotted against the said application @ Rs.4.50 per share partly paid up after a period of six months. 6. My attention was invited to the case made out by the Applicant that a sum of Rs.5,50,000/- was paid in cash to the first Respondent. In the agreement there is no recital regarding the payment of amount in cash. Moreover, in the cross examination the Applicant has stated thus : . As per the agreement no any amount in public issue of Jigar Project Ltd. has been invested. No share certificate of Jigar Ltd. was issued. No shares of the said company were given by me to the Accused. It is not correct to say that I did not comply with -4- my part to the agreement. I have no any other I have no any other I have no any other documents documents documents except agreement as a proof to show that except agreement as a proof to show that except agreement as a proof to show that payment payment payment was made. was made. was made. It is correct to say that the cheques were given to me as a security to the agreement." (Emphasis added) 7. Considering the recital in the agreement and what was stated by the Applicant in the cross examination, the first and the second Respondents were justified in arguing that the presumption stood rebutted. It must be borne in mind that the case of the Applicant is that a large sum of Rs.5,50,000/- was paid in cash. In this context, the learned Trial Judge has observed and in my view rightly, that there was no material on record to show that the Applicant had paid Rs.5,50,000/- in cash. It is well settled that for rebutting a presumption under section 139 of the said Act of 1881, it is not necessary for the accused to enter the witness box and on the basis of preponderance of probability, the accused can show that presumption stands rebutted. 8. In any event, it is obvious that the view taken by the learned Judge is certainly a possible view which could have been taken on the basis of evidence on record. Even assuming that the Advocate for the Applicant is right, at highest, it can be said that another view is possible to be taken. However, this is no ground to interfere in the Appeal against -5- acquittal. Application for leave is rejected. JUDGE JUDGE JUDGE