1 Cri.A.535.10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.535 OF 2010 [Gajanan Nagri Sahakari Bank Marayadit Beed Vs. Deelip Shrimantrao Mache] Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders. Court’s or Judge’s Orders Shri.A.B.Aghav,Advocate for Applicant. Shri.S.J.Salunke,Advocate for Respondent. .... CORAM: SHRIHARI P.DAVARE, J. DATE : 18TH APRIL, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. This is an application preferred by the applicant (Original complainant) seeking leave to file appeal, challenging the Judgment and order dated 3rd December, 2009, rendered by the Civil Judge Senior Division, and Judicial Magistrate Beed, in S.C.C.No. 2189 of 2007, thereby acquitting the respondent (original accused) for the offence punishable under section 138 of the Negotiable Instruments Act. 2 Cri.A.535.10 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders. Court’s or Judge’s Orders 3. Apparently, having comprehensive view of the matter, initial presumption is in favour of the applicant, under section 118 and 139 of the Negotiable Instruments Act, which is rebuttable, and the accused is required to rebut the said presumption on preponderance of probability, and after such rebuttal of presumption on such standard of proof, the burden shall shift upon the complainant to prove and establish that there exists legally enforceable debt, and accused issued the said cheque in question towards discharge of legally enforceable debt/liability beyond reasonable doubt. However, apparently, considering the defence of the respondent-accused, there is arguable point- “Whether respondent (original accused discharged the burden at least on preponderance of probability?” 4. Hence, application for leave to file the Appeal, is granted. . Admit. 3 Cri.A.535.10 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders. Court’s or Judge’s Orders 5. Mr. Salunke, learned advocate waives service of notice for respondent, after admission. 6. The respondent(Original Accused) to furnish same bail, on which he was released on bail, during the pendency of the trial, by the trial Court, but to execute a fresh bond, before the trial Court within a period of four weeks, from today. 7. Record and Proceedings be sent back to the concerned Court. Sd/- [SHRIHARI P.DAVARE, J.] MTK