1 Appln 380-2011 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.380 OF 2011 M/s.Kalpataru Aluminiums Pvt. Ltd..Applicant V/s. M/s.Excellent Metal Industries & .Respondents ors. Mr.Sanjay Velkar, Advocate, for the Applicant Mr.Sanjay Bhatia, Advocate, for the Respondent Nos.1 to 3 Mrs.U.V.Kejariwal, APP, for Respondent No.4  State CORAM : R.C.CHAVAN, J. DATE : 25TH JULY, 2011 P.C. . Heard the learned Counsel for the respective parties. 2. This is an application for leave to file an appeal against Appellate Judgment of the learned Additional Sessions Judge, Greater Bombay, whereby he set aside conviction of the respondents for the offence punishable under Section 138 of the Negotiable 2 Appln 380-2011 Instruments Act. The learned Counsel for the applicant is right in submitting that even if blank cheques are given by the Complainant & if the Complainant can show that the cheques were put for encashment only when liability existed, upon the dishonour of such cheques for the offence punishable under Section 138 of Negotiable Instruments Act would be made out. He is also right in submitting that the Judgment in Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, reported at 2008 ALL MR(Cri) 1164 (S.C.) on which the learned Appellate Judge has placed reliance stands over ruled to the extent of absence of presumption about legally enforceable liability in subsequent Judgment of the Supreme Court in Rangappa v. Mohan, reported at 2010 CRI.L.J.2871. But this does not wipe out the fact that the respondent has rebutted the presumption raised about existence of liability from the cross examination of the two witnesses about the debts for which a 3 Appln 380-2011 cheque for Rs.88,095/- was issued. The accused was not liable to pay that amount. First PW-1 Shankar Shinde admitted in his cross examination that the transaction between 11th May, 2002 to 21st June, 2002 involved only Rs.48,882/- to be recovered from the accused. He also admitted that a cheque of Rs.40,000/- was encashed by the Complainant and the Complainant did not supply material against the cheque of Rs.40,000/-. As if this was not enough, PW-2 Nandkishor Dhanuka had admitted in his cross examination that it was true that when the disputed cheque was received, there was no liability of Rs. 88,000/- or more and that there was only an order and till that date goods worth Rs. 20,000/- to Rs.30,000/- had been despatched. Thus, if there was no liability in respect of the cheques on that date, it cannot be said that the learned Appellate Judge erred in setting aside conviction of the respondents and hence, leave refused. Appeal dismissed. 4 Appln 380-2011 3. Criminal Application stands disposed of. (R.C.CHAVAN, J.)