1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3135 OF 2008 Shri Manubhai C. Desai ..... Applicant vs. Shri Raju Vasant Hegde & Anr. ..... Respondents Mr.Santosh N. Patil i/by M.P. Vashi & Associates for applicant. Mr. S.A. Shaikh, APP for State. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 25th August, 2009. PC : 1. This application is filed seeking leave to file appeal challenging the judgment and order dated 25th April 2008 passed by the learned Metropolitan Magistrate, Bandra acquitting the respondent of the offence punishable under Section 138 Negotiable Instruments Act. 2. It is the case of the applicant that he had given money to the respondent by way of friendly loan from time to time, totalling to Rs.50,000/- and the respondent issued the cheques in question towards repayment of loan. The defence of the respondent to the prosecution is that he had taken loan of only Rs.16,000/- and had already repaid the same. He also alleged that the applicant being a money lender cannot resort to Section 138 2 Negotiable Instruments Act. 3. The learned Metropolitan Magistrate framed following points for consideration. “(A) Whether accused has successfully rebutted the presumption u/s 139 of the N.I. Act, 1881 which is against him? (B) Whether complainant has proved his case after the rebuttal of presumption and shifting of burden of proof by accused upon him?” The first point was answered in the affirmative and second point was answered in the negative. The learned judge noted that except for the dishonoured cheque and the contents of the statutory notice, there was no evidence produced by the applicant of the alleged hand loan of Rs.50,000/- given to the respondent. The complaint and the affidavit filed under Section 146 of the Negotiable Instruments Act state that a sum of Rs.16,200/- was given by two cheques dated 11th July 2002 and 23rd April 2003 to the respondent. Rest was supposedly paid in cash for which no receipts are issued. Further the respondent is stated to have worked as a driver with the applicant for a period of three months only. But it is the claim of the applicant that the amount of loan given in cash from time to time was spread over two years. The learned Judge posed a question as to whether the applicant continued to advance monies to the respondent even after he left the services. 3 4. As regards the contention of respondent that the applicant is a money lender, undisputedly wife of the applicant is licensed money lender. The learned Judge has observed that in such circumstance, it would be difficult to believe that the applicant as a prudent man, whose wife is licensed money lender will provide loan from his personal account and that too on interest. With these observations, the learned Judge has held that the respondent has succeeded in rebutting the presumption under Section 139 Negotiable Instruments Act. After rebuttal of resumption, the applicant has not brought any evidence to establish that the cheque in question was towards any legally enforceable debt. In my opinion, the impugned judgment does not exhibit any error or illegality and hence does not warrant any interference. The application for leave to file appeal is rejected. In view of refusal of leave to file appeal, the Criminal Appeal filed by the applicant also stands dismissed. (Smt.R.P.SondurBaldota, J.)