1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1268 OF 2009 IN CRIMINAL APPEAL NO. 343 OF 2007 Mr.Joseph Francis D Souza .. Applicant. vs. Mr.Eugiene Pinto & Ors. ..Respondents. .... Mr.P.S.Chavan for the applicant. Mr.R.A.Shaikh for respondent no.1. Mrs.M.H.Mhatre, A.P.P.for the State. .... CORAM : A.R. JOSHI,J. DATE : 16th July 2009. P.C.: 1. Heard rival submissions for some time. It is the leave petition to file appeal against the acquittal of respondent no.1. In fact, respondent no.1 was convicted by judgment and order of Metropolitan Magistrate Court, Mumbai in the matter of offences punishable under Section 138 of Negotiable Instrument Act. It was the complaint for taking action against respondent no.1 for dishonour of cheque of Rs.22,000/-(Rupees twenty two thousand). Against said conviction, respondent no.1 preferred an appeal before the Sessions Court, Mumbai and it was allowed. This resulting in acquittal. Said acquittal is challenged in the present matter before this Court. 2 2. Perused the reasoning given by the Sessions Court, Bombay while allowing the appeal of the convicted accused. It appears that Sessions Court was influenced by the admission given by the complainant as to part amount of the total loan i.e. Rs.1,955/-(Rupees one thousand nine hundred fifty five) was given in cash by the complainant to respondent no.1-accused and remaining amount was given by his wife as he had given a self-drawn cheque to his wife of an amount of Rs.19,600/-(Rupees Nineteen thousand six hundred only) to his wife and she withdrew the amount from the bank and allegedly gave it to the accused. By way of such admission, it was ascertained by the Sessions Court that it was must for the complainant to examine his wife in order to show the giving of the total loan of Rs.22,500/- (Rupees twenty two thousand five hundred), for repayment of which the cheque was given by the accused. 3. It appears that giving of the cheque is not disputed by the accused. However, what is disputed is not receiving any loan amount as alleged and receiving only the amount of Rs.1,955/-(Rupees One thousand nine hundred fifty five) cash from the complainant. Admittedly, respondent no.1- accused did not enter into the witness box and did not lead any evidence and did not place himself for the cross- examination apparently, on the premise that complainant could not establish the giving of the total loan amount, as 3 alleged in the complaint. 4. In the opinion of this Court, it appears that the presumption envisaged by Section 118 and 139 of the Negotiable Instrument Act appears to have been overlooked and Sessions Court has given much emphasis on non- examination of wife, mainly ignoring that admittedly, the cheque was given by the accused. 5. In view of the above, in the opinion of this Court, there is a point to be decided in the appeal in order to ascertain correctness and legality of the impugned judgment of Sessions Court allowing the appeal. Hence leave petition is allowed and accordingly disposed of. Appeal is admitted. Call for R. & P. (A.R. JOSHI,J.)