IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1872 OF 2008 CRIMINAL APPLICATION NO. 1872 OF 2008 CRIMINAL APPLICATION NO. 1872 OF 2008 IN IN IN CRIMINAL APPEAL NO. OF 2008 CRIMINAL APPEAL NO. OF 2008 CRIMINAL APPEAL NO. OF 2008 Viran Pandurang Kulkarni ...Applicant (Orig.Complainant) vs. Dharmaraj Shrimant Kadam & Anr. ...Respondents Mr.Sriniwas S. Patwardhan with Mr.Patil for the Applicant. Mr.Shah for Respondent No.1. Mr.U.V. Nikam, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : NOVEMBER 18, 2008 DATED : NOVEMBER 18, 2008 DATED : NOVEMBER 18, 2008 P.C. :- P.C. :- P.C. :- 1. Heard Shri Patwardhan with Shri Patil for the applicant and Ms.Shah for Respondent No.1. 2. The applicant is challenging the judgment and order passed by the trial court whereby the learned Magistrate was pleased to acquit the respondent accused for the offence punishable under Section 138 of the Negotiable Instruments Act. The case of the complainant is that the applicant had entered into an agreement with respondent no.1 to sell land which was duly executed on - 2 - 8.10.2001. It was agreed that the total consideration for sale of the land was Rs.2,20,000/- and out of the said amount, an amount of Rs.20,000/- was paid as earnest money at the time of execution of the agreement. It is the case of the complainant that the at the time of the execution of the final Sale Deed which was executed on 19.6.2002, the respondent had paid an amount of Rs.1,60,000/- in cash and he had also given a cheque of Rs.40,000/- drawn on Solapur Zilla Maryadit Sahakari Bank Ltd., Solapur, dated 31.1.2003 and it was assured by the respondent accused that the cheque would be honoured after it was deposited. However, when the cheque was deposited by the complainant, it was dishonoured. A statutory notice was served. The respondent no.1 gave a reply to the said notice on 18.8.2003 and thereafter, a complaint is filed under Section 138 of the Negotiable Instruments Act. The trial court after appreciating the evidence on record came to conclusion that the complainant had not established that the cheque was given for a legally enforceable debt or liability. - 3 - 3. Counsel for the applicant submitted that the trial court had erred in recording the said finding. It was submitted that the post dated cheque was given on the date of the sale deed dated 19.6.2002. It was submitted that the presumption was raised under Section 139 of the Negotiable Instruments Act and the initial burden was on the respondent to establish that the said cheque was not given for legally enforceable debt or liability. He invited my attention to the statement of the complainant and the suggestion made by the complainant in the cross-examination. He submitted that the trial court had wrongly interpreted the reply which was given by the complainant in the cross-examination. 4. On the other hand, it was submitted by the respondent that initial presumption raised under Section 139 had been rebutted by cross-examining the complainant. It was submitted that it was admitted in cross-examination by the complainant that the respondent no.1 and his wife had given him cash amount of Rs.2 lakhs. - 4 - 5. I have heard both the learned Counsel for the applicant and the respondent at length. I have perused the impugned judgment and order passed by the trial court as also the notes of evidence which are annexed to the leave application. In the present case, the complainant has admitted that he had received the balance consideration in cash. The respondent in his defence has stated that initially, since the respondent did not have any cash amount at the time of the execution of the agreement of sale, he had to show his bonafide and gave a cheque as and by way of security to the complainant. The trial court has recorded the finding that in view of the admission given by the complainant of having received entire balance sale consideration of Rs.2 lakhs, it is not established as to why the said cheque of Rs.40,000/- was given by the complainant. Further, the trial court has also noticed, after going through the sale deed, that the complainant had clearly acknowledged receipt of Rs.2 lakhs and further has noticed that there is no averment in the said sale deed that balance amount of Rs.40,000/- is yet to be paid and that a cheque for that purpose had been - 5 - given. I do not see any infirmity or illegality in the said finding recorded by the trial court. Factually, if the said amount had not been paid and the post dated cheque for that purpose had been given by the respondent no.1, the complainant would have mentioned that fact in the sale deed. In this view of the matter, no case is made out for grant of leave. 6. Leave is refused. Appeal does not survive. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)