IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.952 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 Mrs.Roopa Trading Co. .. Appellants V/s. Mr.Lalji Veera & Anr. .. Respondents Mr.Kishor Bhatia for the Appelants. Mr.S.M.Z.Nagami & Mr.Subhash Dhadge for Respondent No.1. Mrs.M.H.Mhatre, A.P.P.for the State. CORAM : A.R.JOSHI, J. DATED : APRIL 23rd , 2009. P.C. Heard rival submission for some time. 2. It is the application for leave to prefer and appeal against the order of acquittal passed by the Trial Magistrate in the matter of 138 of Negotiable Instruments Act proceeding, thereby acquitting the Respondent accused. 1 3. On perusal of the papers and after hearing the rival submission, it transpired that while acquitting the accused Trial Magistrate has accepted the submission of the accused that various documents, bills, challans and income tax papers available with the complainant were not produced in order to back the cheque which was dishonoured. The cheque is to the tune of Rs.2,63,440.64. There is no disputed that the cheque was not given by the accused, it is his case that it was given in blank as and by way of security. 4. During the cross examination of the complainant, a case is made out to suggest that there was the transaction of the total bills which were 12 in numbers and shown to the complainant and that total goods worth from Rs.2,56,000/- and odd were sold to the accused and then that complainant had received Rs.1,63,000/- and odd and outstanding balance was only Rs.92,000/- and odd. However, said case was denied by the complainant. Admittedly, though, according to the case of the accused the amount of Rs.92,000/- and odd was outstanding in reply to the demand notice, no such plea was taken, and it was the simplicitor denial of the accused as to no any dues payable as on the cheque which came to be dishonoured. 5. It appears that the Trial Magistrate had overlooked the 2 presumptions attached to a Negotiable Instruments Act i.e. a cheque as per the provisions of section 118 of the said Act, and once it was the case of the accused that he had issued a cheque, though, in blank to the complainant, then, there must be such presumption attached to it. Though, various documents as suggested by the accused were not produced by the complainant, in the opinion of this Court, it was incumbent on the accused to came out of such presumption. All the same, it appears that there is a triable matter before this Court at the Appeal and as such leave is required to be granted and accordingly, the present application for leave is, allowed and disposed of. 6. Appeal is admitted. 7. Call for record and proceeding. (A.R. JOSHI, J.) 3