1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3656 of 2010 IN CRIMINAL APPEAL NO. of 2010 Avinash P. Jagtap .. Applicant Versus Sarfaroz Khan s/o. Umar Khattab & Another ...Respondents Mr. K.S.Patil a/w. Pravin Padave for Applicant. Rani S. Chavan for Respondent No.1 Mr.H.J.Dedia APP for State. CORAM:- R.Y.GANOO, J. DATED:- 7th JULY, 2011. P.C. 1. The respondent faced criminal trial under Section 138 of the Negotiable Instruments Act in the Metropolitan Magistrate’s 20th Court, Mazgaon, Mumbai in C.C.No.688/SS/2006. The learned Metropolitan Magistrate, by Order dated 11th June, 2010 acquitted the present accused. The applicant has filed the appeal against this order dated 11th June, 2010. This application is filed as required under the 2 provisions of law. 2. According to learned Counsel Mr. Patil, the respondent has not discharged the burden cast on him under Section 139 of the Negotiable Instruments Act. Learned Counsel Mr. Patil relied upon the judgment in the case of Rangappa vs. Mohan reported in 2010 Cri. L.J.2871. Learned Counsel Mr. Patil submitted that the Supreme Court in this judgment has held that if the accused in a case under Section 138 of the Negotiable Instruments Act does not discharge the burden cast on him under Section 138 of the Negotiable Instruments Act, the Court is required to take it that the amount payable by the accused to the complainant is “legally enforceable debt or liability”. Learned Counsel Mr. Patil submitted that this aspect of the matter has not been considered by the learned Metropolitan Magistrate in a proper perspective and he proceeded to acquit the accused in a wrong manner. 3. Learned Counsel appearing on behalf of the respondent, who is present in the court pursuant to the notice, submitted that in the cross examination necessary information was elicited so as to bring on 3 record the alleged transaction as regards handing over of loan of Rs. 6,00,000/- . According to him said transaction is not reflected in the Books of Account of the complainant and therefore the said transaction does not have colour of law and therefore the court should not accept the said transaction as the one covered by the term “legally enforceable debt of liability”. In support of this proposition, she relied upon the judgment in the case of Sanjay Mishra vs. Kanishka Kapoor @ Nikki & Another reported in 2009(3) Bom.C.R. (Cri.) 157. According to her the aforesaid judgment clearly takes care of the situation in regard to a transaction which is not reflected in the Books of Account of the complainant or which are executed in illegal manner. She submitted that the view taken by the learned Metropolitan Magistrate is proper and requires no interference. 4. I have considered the rival submissions. The submission of learned Counsel Mr. patil that once the accused fails to discharge the burden cast on him under Section 138 of the Negotiable Instruments Act, the Court should not go into the merits of the transaction and hold the transaction as a legal transaction and bring it within the four corners of the term “legally enforceable debt or liability” cannot be accepted. 4 In my view, even if such burden is not discharged by the accused it would be necessary for this Court to investigate on the basis of the evidence before the court as to whether the transaction on the basis of which the liability is sought to be fastened upon the accused has a sanction of law and/or within the bounds of the provisions of law. 5. In the present case, in the cross examination the complainant has answered that in the year 2004-2005 he had cash amount of Rs. 4,00,000/- to 5,00,000/-. He has further stated that he had not shown said amount as cash in hand in his balance sheet. He has further stated that when he paid the amount to the accused, he had not obtained any receipt from him. The relevant words are as under “ In the year 2004-2005 I had cash amount of Rs.4,00,000/- to 5,00,000/-. I had not said amount as cash in hands in my balance sheet. When I paid the amount to the accused I had not obtained any receipt from him. “ To me, it appears that there is some mistake in the matter of recording of evidence with reference to the particular statement “I had not said amount as cash in hand in my balance sheet”. To me it appears that the answer which was given by the witness would be to 5 sugest that he had not reflected said cash in hand in his balance sheet. Learned Counsel Mr. Patil submitted that since the cash went out of the hands of the complainant there was no question of reflecting the said amount in his balance sheet as cash in hand. Even if this submission is accepted, there is nothing to show that this transaction is reflected in the books of account and necessary entries are made to show that the amount of loan was handed over in cash. This is fortified by the fact that the complainant has admitted that when he handed over the sum of Rs.6,00,000/- to the respondent, he had not obtained the receipt from him. The very fact that the complainant handed over a large amount of Rs.6,00,000/- and did not obtain the receipt from the respondent, itself goes to show that the complainant was not inclined to bring this transaction on surface and place it on record. If the transaction would have been as can be treated as a legal transaction, plaintiff, in the normal course would have obtained receipt from the respondent for having received cash of Rs. 6,00,000/-. It is just difficult to believe that the complainant would ignore this aspect of the matter particularly when complainant is a businessman and he has admitted that he has maintained regular books of account. In my view, the judgment in the case of Sanjay 6 Mishra as mentioned earlier would come in the way of the complainant and that the transaction of the complainant will have to be treated as one which is not having sanction of law and that is how the complainant will not be able to recover the amount. 5. For the reasons mentioned aforesaid, I am not inclined to accept the stand of the applicant that the impugned order requires interference. Consequently, application is dismissed. (R.Y.GANOO, J.)