( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 3443/2008 & Criminal Appeal No.672/2008 Shriniwas Ramdas Silwerwar vs Shantaram Pandurang Deotale ------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr. Mahesh Roy, Adv. for the applicant. Mrs.R.D.Bhuibhar, Adv. for respondent. Coram: A.P. Bhangale, J Dated : 26th August, 2009 Criminal Application No.3443/2008 Heard. 1) By this application the applicant prays for leave to file appeal under Sec.378 (4) of Cr.P.C. against the judgment and order dated 18/08/2008 passed by Chief Judicial Magistrate, Chandrapur in S.S.C. No.914/2006 whereby the accused was acquitted of the offence punishable under Sec.138 of Negotiable Instruments Act, 1881. 2) Heard contentions. It is contended on behalf of the applicant that the statutory reason in ( 2 ) favour of the holder under Sec.139 of N.I.Act was not duly considered by the learned trial Court. First it was necessary for the accused to rebut the statutory presumption and then only the complainant may be called upon to lead evidence. Otherwise the fact that three cheques were issued in total sum of Rs.3,50,000/- which was presented for payment, but were dishonoured on the ground that payment was stopped by the drawer. In respect of which, demand notice was also duly served upon the accused, but he failed to make payment in respect of the cheques in question. 3) Learned Advocate for the respondent on the other hand contended that trial Court had rightly decided that complainant has failed to prove that the accused issued three cheques in discharge of legal enforceable debt or liability. 4) In view of the statutory presumption under Sec.139 of N.I. Act, if it is always necessary to find out as to whether statutory presumption has been rebutted by the accused, then only burden can shift upon the shoulder of the complainant. Arguable case is made out for admission of appeal. Application is allowed. ( 3 ) Criminal Appeal No.672/2008 Admit. Call R & P. Private paper book be filed in ten weeks. Learned Advocate for respondent waives service. Judge. Khunte