1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (APPA) No. 1611/2009 [GAURAV OMPRAKASH JAJU VS. SHRI SHAKTI FABRICS] ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. M.G.Sarda, Advocate, for the applicant. Mr. J.M.Gandhi, Advocate, for respondent. .......... CORAM : P.D. KODE, J. DATE : DECEMBER 10, 2009. Heard. By the present application, the applicant has sought a special leave under Section 378(4) for Cr.P.C for preferring an appeal against the judgment and order dated 27.02.2009, acquitting the non-applicant/respondent from commission of offence under Section 138 of Negotiable Instruments Act. Learned counsel for the applicant has mainly urged two points i.e the defence of the accused as found recorded in paragraph no. 6 of the judgment being not at all established and further the trial court having come to the conclusion of the accused having rebutted presumption arising out of Section 138 of Negotiable Instruments Act upon surmises and without any evidence having surfaced on trial for drawing such a conclusion. Learned counsel has thus contended that since the perusal 2 of judgment reveal that the same fails to pin-point the evidence or admission of the complainant leading to the conclusion as drawn by the trial Court regarding the aspect of presumption being rebutted, the leave deserves to be accorded. Though learned counsel for the respondent has made a strenuous effort to contend that the application for leave is liable to be dismissed on the count of the same failing to disclose any ground as canvassed by the learned counsel for the applicant, it is difficult to accept the said statement in view of the matters recorded in paragraph no.3 of the application which amongst others reveal that the judgment is based upon extraneous evidence. Having regard to the same and perusal of the judgment in the light of the said aspect and particularly the reasons recorded in paragraph Nos. 12 and 18 of the judgment, prima facie supports the submissions canvassed by learned counsel for the applicant. In view of the same applicant has made out arguable case for according leave as prayed as the relevant aspect agitated warrants detailed examination in light of the records of case. Hence, the order. Leave to prefer appeal granted. Application stands disposed of. CRIMINAL APPEAL NO. 268/2009 Heard. Issue notice before admission to the respondent 3 with specification that parties are put to the notice that having regard to the subject matter, the appeal may be disposed of at the admission stage after hearing both the parties. Mr. Gandhi, Advocate, appears waiving notice for respondent. List the appeal for admission on 15/01/2010. JUDGE Rvjalit