[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLN.NO.1743 OF 2008 IN CRI.APPEAL NO. OF 2008 Mr.Mohammed Mustakin Khan ..Applicant Vs. The State of Maharshtra and Ors. ..Respondents ... Mr.Ashok Bhatia for Mr.Pratap Singh Advocate for Applicant Mr.Y.S.Shinde APP for State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JUNE 25, 2008 DATE : JUNE 25, 2008 DATE : JUNE 25, 2008 P.C. P.C. P.C. 1. The Applicant-complainant has preferred this application for leave to file an appeal against the judgment and order dated 2.5.2008 passed by the learned Metropolitan Magistrate, 31st Court, Vikhroli Mumbai in Case No.256/SS/2007. By the said judgment and order, the learned Magistrate acquitted the Respondent No.2-accused of the offences under Section of the 138 of Negotiable Instruments Act. 2. The case of the complainant is that he deals in business of selling chicken. It is the case of the [-2-] complainant that accused also does the same business in the name of M/s.KGN Poultry and Aisan Poultry at Hariyali village, Vikhroli (E) Mumbai. According to the complainant, accused brought chicken worth Rs.50,000/- from him and in respect of the said purchase, cheque in question for Rs.50,000/- came to be issued. As the cheque was dishonoured, complaint came to be filed. 3. I have heard the learned advocate for the applicant-complainant. I have perused the impugned judgment and order as well as the evidence which has been produced by the learned advocate for the applicant. 4. For an offence under Section 138 of N.I.Act, cheque has to be given for a lawful consideration. No doubt, there is presumption under Section 139 of N.I.Act. However, the accused can rebut these presumptions from the circumstances brought in the cross-examination of the complainant and or by examining himself or other witnesses and producing documents. 5. The case of the complainant is that he had sold [-3-] chicken worth Rs.50,000/- to the accused and cheque was given in respect of the said sale. The complainant has admitted in his cross examination that he obtained acknowledgement of delivery of goods from the customers. However, he has no writing to show receipt of delivery of goods worth Rs.50,000/- to the accused. The complainant has not explained the breach of practice of obtaining acknowledgement from the accused. The complainant has not disclosed the period of sale and supply of chicken worth Rs.50,000/- to the accused and was also unable to explain the exact period of supply during his cross-examination. In this background, existence of legal enforceable liability appears doubtful. 6. Moreover, it is seen that the complainant submits income-tax returns. However, the liability in respect of the present transaction is not reflected in the income tax returns. The complainant has not produced any documents to show that there was legally enforceable liability against the accused and the said amount is also not shown in his income tax returns. No other document in the shape of books of account, profit and loss [-4-] account and balance sheet or income-tax returns are produced. Useful reference may be made to the decision of this Court in the case of Vasudev Vasudev Vasudev Ramchand Ahuja Vs. Vilas Shripati Kamble Ramchand Ahuja Vs. Vilas Shripati Kamble Ramchand Ahuja Vs. Vilas Shripati Kamble reported in 2006(2) Bombay C.R. (Cri.) 1, 2006(2) Bombay C.R. (Cri.) 1, 2006(2) Bombay C.R. (Cri.) 1, wherein it is observed as under: . The observation seen by the trial Court that amount allegedly paid by complainant during period, has not been reflected in Income Tax Returns as well as in Books of Account. Reasons recorded by the Court below on appreciation of evidence on record, impugned judgment cannot be said to be unreasonable and perverse." 7. It is the specific case of the complainant that the accused was carrying on business at Hariyali village, Vikhroli. However, specific case of the accused is that he did not have any shop at Hariyali village, Vikhroli. Accused carries on his business in a shop in Janata Market, Kannamwar [-5-] Nagar, Vikhroli (E) Mumbai. Neither the residence nor the shop of the accused is at Hariyali village, Vikhroli. It is true that the accused is carrying on business at Janata Market, Kannamwar Nagar, Vikhroli (E) Mumbai which is seen from the documents produced by the accused i.e. identity card issued by Election Commissioner and the letter correspondence which shows that his place of business is situated at Kannamwar Nagar, Vikhroli and not at Hariyali village, Vikhroli. The case of the complainant is that he has supplied chicken to the accused who was carrying on business at Hariyali village, Vikhroli. However, the accused has brought on record that he does not carry on business at Hariyali village. Looking to all these facts, the learned Magistrate held that there is no evidence to show that there was any legally enforceable liability. 8. Looking to the evidence on record, I am of the opinion that the view taken by the learned Magistrate is a reasonable and possible view. Hence, no interference is called for. Application for leave to file appeal, is rejected. [-6-] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]