/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1544 OF 2008 Shri Pandurang Jyoti Shinde ...Appellant Vs. Shri Suryakant Chandure & Anr. ...Respondents --- Mr. Manoj Kadam for Appellant Mr. J.P. Yagnik -APP Mr. Tejpal S. Ingle for Respondent No.1 ---- CORAM: V.M. KANADE J. DATED 29TH SEPTEMBER,2008 P.C. 1. Heard the learned Counsel appearing on behalf of the Appellant and the learned Counsel for the Respondents. The Appellant has filed his application for leave to file an appeal, challenging the judgment and order passed by the Judicial Magistrate, First Class, Miraj dated 6.12.2007, whereby the Learned Magistrate was pleased to acquit the Respondent Accused for the offence punishable under section 138 of the Negotiable Instruments Act. The Complainant had filed a complaint against the Respondent herein, alleging that he had given a hand loan to the Respondent for an amount of Rs.1,00,000/- and the Accused had assured to the Complainant that the said amount would be repaid within a period of one / 2 / month. Thereafter, the Accused, according to the Complainant gave two postdated cheques dated 23.4.2003 and 10.4.2003 for an amount of Rs.50,000/- each, drawn on Shivneri Sahakari Bank Ltd., Ichalkaranji. When these two cheques were deposited in the bank, they were dishonoured. A notice was sent by the Complainant to the Accused through registered post, which was returned on 16.6.2003 with remark as “intimation given not claimed”. The Complainant, therefore, has filed the complaint under section 138 of the Negotiable Instruments Act. 2. In order to prove his case, the Complainant has filed his affidavit in evidence and examined the postman Shri Anil Shinde and closed his evidence. The Accused examined Krishna Savekar, an employee of Shivneri Sahakari Bank Ltd. as witness. The Trial Court after appreciating the evidence on record, came to the conclusion that the complainant had not established that there was a legally enforceable debt or liability. He further held that the Complainant had not established that had the means to give an amount of Rs.1,00,000/- to the Accused. It, therefore, held that an essential ingredient for establishing the offence under section 138 was not proved by the Complainant. It is further held that the evidence given by Anil Shinde, the postman, who claimed that he has given the notice to the accused, was not / 3 / reliable and it disbelieved the evidence of this witness and, therefore, held by the Learned Magistrate that the statutory notice has not been served. The Trial Court accepted the defence of the Accused that he had no occasion to give the said cheques to the Complainant, since he had already closed his account in the year 2000 itself. The Trial Court, therefore, accepted the version of the bank employee, who was examined by the Accused. 3. The learned Counsel appearing on behalf of the Accused submitted that the Trial Court had clearly erred in shifting the burden on the Complainant particularly when the presumption was drawn under section 139 that the cheques were issued for a legally enforceable debt or liability. He further submitted that the Complainant could not have known that the Accused had closed his account when the cheques were issued to them. He submitted that therefore, the Trial Court clearly erred in accepting the version given by the Accused. He submitted that the Trial Court had also erred in disbelieving the evidence of the postman only on the ground that he had deposed the service of the notice after lapse of four years. 4. Submissions made by the learned Counsel for the Complainant cannot be accepted. The Trial court had given cogent reason for disbelieving the evidence adduced by the Complainant. It is no doubt that the / 4 / presumption is raised under section 139 of the Negotiable Instruments act that the cheques were issued for legally enforceable debt or liability. However, before such a presumption can be raised, the initial burden of establishing the fact that there was a legally enforceable debt or liability squarely lies on the Complainant. The Trial Court in my view, therefore, justified in coming to the conclusion that the complainant had not produced any evidence to show that he had financial capacity to advance an amount of Rs.1,00,000/- to the Accused. The Trial Court, therefore, was justified in coming to the conclusion that the initial burden of establishing that there was legally enforceable debt or liability has not been discharged by the Complainant. 5. Under these circumstances, there is no justification to grant leave to the Complainant by an appeal. This Court while exercising its jurisdiction under section 138 is not expected to set aside the finding recorded by the Trial Court, unless it is noticed by this Court that the said finding is perverse. Under these circumstances, no case is made out for interfering in the judgment and order passed by the Trial Court. Leave is refused. Appeal does not survive. / 5 / V.M. KANADE J.