1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Criminal Appeal No.27 of 2008 (Deorao Hiraman Nitnaware v. Chudaman Govindrao Zingare) -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Memoranda of Coram, appearances, Court's orders or directions : Court's or Judge's orders and Registrar's orders. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Shri P.A. Deshmukh, Advocate for Appellant. Shri R.P. Dhote, Advocate for Respondent. CORAM : R.C. Chavan, J. DATE : 20th January, 2009 1. This appeal was marked for final hearing at the stage of admission by order dated 30-1-2008. 2. The appellant had filed a criminal complaint for offence punishable under Section 138 of the Negotiable Instruments Act against the respondent for having failed to pay a sum of Rs.1 lac under a cheque, which was dishonoured. 3. I have heard the learned counsel for the appellant, who painstakingly unfolded the facts of the case, and also took me through the relevant judgments on this aspect. 4. There can be no doubt, as held in Gorantla Venkateswara Rao v. Kolla Veera Raghava Rao and another, reported at 2006 ALL MR (Cri) 54, on which the learned counsel for the appellant placed reliance, that the burden to prove that there was no liability under the cheque dishonoured lay on the accused. Since there is a presumption that a cheque was issued for a legally enforceable debt, it would be for the 2 accused to show that such was not the case. In that case, in respect of failure to produce a promissory note, it was held that it would not be sufficient to conclude that there was no legally enforceable liability. 5. In the present case, the complainant had admitted that he had advanced a sum of money after taking a promissory note by way of security. According to the complainant, a sum of Rs.1 lac was advanced by paying Rs.50,000/- in cash and delivering a cheque of Rs.50,000/-, which was encashed by the accused. The defence of the accused was that only Rs.50,000/- was borrowed and that the promissory note so mentioned and, therefore, it was not produced. The question is not of shifting the burden on the accused to show that the cheque was not issued for a legally enforceable liability. That burden would remain on the accused. The question is of presumption to be drawn on account of non-production of a vital piece of evidence, which was in the possession of the complainant. Since the complainant admits that the promissory note was with him and he had not produced it, it would have to be inferred that the promissory note was not produced, because its production would have adversely affected the complainant's case and, therefore, it would have to inferred that the promissory note might have been for Rs.50,000/- only, and, therefore, it was not produced. 6. Viewed thus, it cannot be said that the learned Trial 3 Judge erred in holding that the cheque for Rs.1 lac was not proved to have been issued for a legally enforceable debt or liability. The liability may have been only for Rs.50,000/-. It is also surprising that the complainant advanced a sum of Rs.50,000/- in cash. Therefore, the view taken by the learned Magistrate cannot be said to be perverse or improbable requiring a correction by this Court. 7. The learned counsel for the appellant also drew my attention to the judgment of this Court in Purushottam s/o Maniklal Gandhi v. Manohar K. Deshmukh and another, reported at 2007(1) Mh.L.J. 210, where this Court had held that an appellate Court should be slow in disturbing the findings of fact, but in respect of issuance and delivery of negotiable instrument, about which, apart from factual aspects, there are statutory presumptions as well, this proposition may not hold valid. 8. As already pointed out, indeed there is a statutory presumption that the cheque is presumed to have been issued for a legally enforceable liability and it is for the accused to show that it was otherwise. But in this case, the complainant having admitted that a promissory note was executed on the same day by way of security, and failed to produce the same without any valid reasons, would lead to an inference that the promissory note was not produced because it production would have been adverse to the case of the complainant. 4 9 . In view of this, there is no substance in the appeal. The appeal is, therefore, dismissed. JUDGE pdl