1 appln5848-10 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5848 OF 2010 (for condonation of delay) WITH CRIMINAL APPLICATION NO. OF 2011 (for leave to appeal) IN CRIMINAL APPEAL NO. OF 2011 Shri Rajendra Shantaram Sawant ..Applicant Vs. Devendra Sardorilal Sharma and others ..Respondent Mr. S. P. Kadam for the applicant Mr. Edgar Braganza for Respondent No.1 CORAM : N.D.DESHPANDE,J. DATED : 25 th March, 2011 P.C.: 1. Heard both sides. 2. The applicant -original complainant has filed this application for condonation of delay caused in preferring an appeal with application for leave against the order of acquittal of the respondent-original accused in a case case registered under Section 138 of the Negotiable Instrument Act. Admittedly, there is 10 days delay. For the reasons stated in the application and the explanation offered, the delay is condoned. Criminal Application No. 5848 of 2010 is accordingly disposed of. 2 appln5848-10 3. Application for leave to appeal is allowed and by consent of the parties, appeal is taken up for final hearing at the stage of admission. 4. Applicant and the respondent are also present. This is an appeal against the order of acquittal dated 8/10/2010 passed by the learned Metropolitan Magistrate 20 th Court, Mazgaon, Mumbai in C.C. No. 851/SS/07 in the matter of a criminal case registered under Section 138 of the Negotiable Instruments Act. The said order is impugned by the appellant applicant in this appeal. 5. The respondent disputed his laibility as a whole and according to him three cheques were issued by way of security for purchasing stationery/scrap material. Learned counsel for the applicant Mr. Kadam relied on the presumption under Section 139 of the Negotiable Instrument Act. He also pointed that these cheques were made on account of Rs.10 lacs which the applicant had already paid to the respondent for purchasing stationery and other material, which the respondent failed to supply. According to the applicant , the said payment was made by him in advance through cheques and also by cash. There is nothing on record to show about the mode of payment of Rs.10 lacs by the complainant to the accused respondent. Although there is presumption in favour of the holder in due course under section 139 of the Negotiable Instruments Act, existing liability for which the cheques have been issued, in whole or in part, has to be established. In the light of the above submissions of the 3 appln5848-10 parties, the matter requires re consideration and therefore needs to be remanded for deciding afresh. Liberty is sought by the appellant to file necessary evidence on record in support of its contention. 6. In that view of the matter, the following order would meet the ends of justice. O R D E R i. Order dated 8.10.2010 passed in Criminal Case No. 85/SS/2005 by the trial Court is quashed and set aside. ii. The trial Court is directed to record additional evidence of the Applicant-original complainant with liberty to produce necessary documents and file affidavit in support of his case. iii. The respondent accused is also at liberty to lead additional evidence. iv. After recording of evidence, the trial Court shall decide the case in accordance with law, preferably within six months form the date of receipt of this order. Both the parties to co-operate the trial. v. Appeal is accordingly disposed of. (N.D.DESHPANDE,J.)