/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5240 OF 2005 IN CRIMINAL APPEAL NO. OF 2005 Deepak Narayan Khanwilkar ...Applicant V/s. Arvind Gopal Katkar & Anr. ...Respondents Shri.A.B. Tidke i/b. P.D. Dalvi for Applicant. Shri.A.S. Khandeparkar with Shri.Datta Pawar i/b. Khandeparkar & Associates for Respondent No.1. Ms.A.T. Zaveri APP for the State. CORAM : V.M. KANADE, J. DATED : 11th FEBRUARY, 2008. P.C:- 1. Heard learned counsel for the Applicant and learned counsel for the Respondents. 2. Applicant is challenging the judgment and order passed by the Trial Court dismissing his complaint which was filed against the Respondent/Accused U/s.138 of N.I. Act. 3. It is case of the Applicant that the Applicant had given a hand- loan of Rs.35,000/- to the Respondent/Accused. Towards the payment of / 2 / said hand-loan, Accused had issued a cheque of Rs.35,000/- which was dishonored after it was deposited with the bank. After issuing a statutory notice, the Applicant filed a complaint U/s.138 of N.I. Act. The Trial Court dismissed the complaint on the ground that in view of admission given by the Complainant in his cross examination that two cheques were given as a security for the alleged transaction and as such, no offence was made under the provisions of Section 138 of N.I. Act. 4. Learned counsel for the Applicant submitted that said finding was incorrect, since the Applicant in his cross examination has stated that cheques, one for an amount of Rs.24,000/- and other for an amount of Rs.30,000/- dated 08/11/2002 were given as and by way of a security. He submitted that there was no reference to the cheque which was dishonored. He submitted that finding of the Trial Court that the Complainant had admitted that the cheque was given by the Accused as and by way of a security, was incorrect. 5. This submission of learned counsel for the Applicant cannot be accepted. Perusal of the impugned order discloses that the Trial Court has taken into consideration three cheques which were given by the Accused to the Complainant. The Trial Court has observed that the Complainant / 3 / received 3rd cheque in respect of amount of Rs.35,000/- in addition to the two cheques of Rs.24,000/- and 30,000/-. The Trial Court on the basis of admission given by the Complainant in respect of two cheques, has come to the conclusion that there was no occasion for the Accused to have issued cheque of Rs.35,000/- to the complainant and therefore, held that no case is made out by the Complainant. The Trial Court has, further, observed that presumption which is raised U/s.139 of N.I. Act can be rebutted by the Accused and upon said rebuttal by the Accused, the Complainant was not entitled to recover cheque amount from the Accused. 6. In my view, the Trial Court has given cogent reasons while acquitting the Accused. There is no infirmity in the impugned order. No case is made out for grant of leave. Leave is refused. . Application is disposed of accordingly. . V.M. KANADE, J.