1 CR.APLN. 4089.2010.odt mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4089 OF 2010 AND CRIMINAL APPLICATION NO.4105 OF 2010 Prasad Dattatraya Tilak ...Applicant Vs. Kamlesh Ramchandra Joshi & Ors. ...Respondents Mr. D.M. Gupte, Advocate for the Applicant Mr. Subodh Shah, Advocate for the Respondent No.1 Mr. S.A. Shaikh, A.P.P for the State CORAM : SMT.ROSHAN DALVI, J. DATED : 2ND MAY, 2011 P.C. : 1. This is an application for leave to file appeal against the order of acquittal of the learned Sessions Court in revision from the order of conviction of the learned Metropolitan Magistrate for a criminal prosecution under Section 138 of the Negotiable Instrument Act, 1881. 2. The case of the Complainant was that for advances made from time to time of Rs.16.5 lakhs cheques came to be given by the accused of Rs. 14.5 lakhs and Rs.2 lakhs, which came to be dishonoured. The loan transactions are required to be seen to show the legally enforceable debt. 2 CR.APLN. 4089.2010.odt 3. Admittedly both the parties were in business together. The Complainant had some blank cheques issued by the Accused during the course of the business. These aspects have been admitted in his cross examination in paragraph 15. The account of the accused was also opened upon the Complainant's wife introducing the accused for that purpose. Separate loan transactions are not shown. The defence of the Accused that his cheque has been misused is, therefore, a probable defence. Incidentally the notice of demand shows the loan of Rs.16.5 lakhs, but the Criminal Complaint does not make any reference for the loans given, but only to the dishonoured cheque. The statutory presumption must be taken to be rebutted under the aforesaid circumstances. 4. Leave to appeal is refused. (SMT.ROSHAN DALVI, J.)