1 Cri.Appln.No.1066/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1066 OF 2011 Mallinath Bhimrao Khyde ... APPLICANT VERSUS Baburao s/o Shatlingappa Hangarde ... RESPONDENT ..... Shri V.D. Gunale, Advocate for the applicant Shri Mukul Kulkarni, Advocate for the respondent ..... CORAM : U.D. SALVI, J. DATED : 13th September, 2011. PER COURT : 1. Heard. Perused application and the record. 2. Learned Judicial Magistrate, First Class, Omerga acquitted the accused of the offence punishable under Section 138 of the Negotiable Instruments Act by making the following observations in the judgment delivered in S.C.C. No.257/2009 on 7.2.2011: “19. After scanning entire evidence before the Court it can be said that complainant has made the material alteration in the cheque without consent of accused and by which the identity of instrument is 2 Cri.Appln.No.1066/2011 destroyed and, therefore, said cheque is itself void one and it cannot be held that any legally recoverable debt is due under that instrument. Moreover, as stated earlier issuance of cheque by the accused is also suspicious one. Evidence adduced by complainant itself is suggesting that cheque was not issued towards discharge of legal liability. Accused has brought the probability before this Court that said cheque was not issued towards any subsisting debts or other liabilities. Therefore, it concluded that the complainant has failed to establish that the cheque was issued towards discharge of legal liability. Accordingly point No.1 is answered in negative.” 3. The applicant is now seeking leave to challenge the aforesaid verdict of learned Judicial Magistrate, First Class, Omerga. According to him, the accused had borrowed an amount of Rs.1,60,000/- and issued a cheque towards repayment of the said amount. On dishonour of the said cheque, S.C.C.No. 2026/2003 for commission of an offence punishable under Section 138 of the Negotiable Instruments Act was lodged by him in the Court of Judicial Magistrate, First Class, Kolhapur against the accused. The said complaint was withdrawn on 3.3.2009 vide purshis Exh. 40 filed in the said case (certified copy of the purshis Exh. 38 in the present case). 4. Purshis (Exh. 38) revealed that the controversy in the said case was put to an end with the issuance of cheque for Rs. 3 Cri.Appln.No.1066/2011 1,60,000/- on 21.2.2009 by the accused. According to the complainant, in good faith he withdrew the said case by reposing confidence in the accused. However, the cheque referred to in the purshis was dishonoured on the ground of insufficiency of funds and the accused did not yield to the notice of demand served on him, thereby giving rise to the case in question. 5. The complainant examined himself and one Chandrakant Chaugule and further adduced in evidence the relevant documents particularly the cheque in question and copy of the purshis Exh. 40 with say and order passed by the learned Judicial Magistrate, First Class, Kolhapur in S.C.C.No.2026/2003 below it. Inviting attention to the evidence of P.W.2 Chandrakant Chaugule, learned Advocate for the applicant submitted that, the cheque in question was issued by the accused for settlement of the dispute by the accused in presence of P.W.2 Chaugule and, therefore, the accused ought to have discharged his burden by rubutting the presumption under Section 139 of the Negotiable Instruments Act and to do so he had not examined himself leaving the evidence of the complainant unquestionable. Countering these submissions, learned Advocate for the accused pointed out to his say recorded on the back of the purshis Exh. 40, which in clear 4 Cri.Appln.No.1066/2011 terms denied the settlement or any dues, and denounced the case as false one. Needless to reiterate that, presumption under Section 139 of the Negotiable Instruments Act can be rebutted with the aid of only the prosecution evidence and it is not necessary for the accused to step in a box unless the revelations in the prosecution evidence are insufficient to rebut such presumption. P.W.1 Mallinath, the complainant, did not produce any receipt or contemporaneous document to show the existence of debt arising out of the alleged hand loan given to the accused. With candid denial of liability recorded by the accused on the back of the purshis Exh. 40 in S.C.C.No.2026/2003 before the Judicial Magistrate, First Class, Kolhapur, it was incumbent upon the complainant to have shown the existence of such debt in his evidence. P.W.2 Chaugule also did not make any reference to any such existing liability of the accused. Cross-examination of P.W.1 Mallinath reveals casual approach of the complainant in giving evidence on oath as regards the record before the Court. He deposed that he was not knowing whether the Judicial Magistrate, First Class, Kolhapur had given hearing to the accused or had obtained say of the accused or not on the purshis tendered for withdrawal of the case. Order below the purshis Exh. 40, on the other hand, clearly records presence of the complainant, accused 5 Cri.Appln.No.1066/2011 and their learned Advocates before the Court, which betrays the myth of P.W.1 Mallinath’s feigned ignorance. 6. Learned trial Court was, therefore, right in making the aforesaid observations. No interference is, therefore, warranted in the impugned judgment. Leave is, therefore, rejected. Application stands rejected. ( U.D. SALVI, J. ) fmp/cri1066.11