( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2525 OF 2006 Shri Mahaveer Urban Credit Co. Society Ltd. APPLICANT VERSUS Anandji Hirji Gala RESPONDENT ..... Smt. Sadar Kazi, advocate holding for Mr. J.R. Shaikh, advocate for the applicant. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 15th October, 2009] PER COURT : 1. The paper publication is effected and a copy thereof is placed on record. Hence, the service be deemed as complete. 2. Heard learned advocate Smt. Kazi holding for Mr. J.R. Shaikh. 3. The respondent was tried before the learned Judicial Magistrate (F.C.) in S.C.C. No. 844/1997 for offence punishable under section 138 of the Negotiable Instruments Act. 4. The case of the complainant (applicant) is that an amount of Rs. 50,000/- was given to the respondent by ( 2 ) way of loan. He had issued cheque dated 09-08-1997 in for an amount of Rs. 36,700/- which could not be encashed because he closed the account on 11-08-1997. The learned Judicial Magistrate held that the respondent issued the cheque. However, it was held that the applicant failed to prove that the cheque was issued in order to discharge legally enforceable debt or the legal liability to pay the amount shown under the cheque. It appears prima facie that conduct of the respondent is required to be closely scrutinized. He closed the Bank account just two (2) days after the issuance of the cheque. The presumption under section 139 of the Negotiable Instruments Act could be invoked. The scrutiny of the evidence is necessary to locate whether the respondent was liable to pay the amount in question. Under these circumstances, leave to appeal is granted. 5. Admit the appeal. 6. The print is dispensed with. Call for record and proceedings. The appellant to furnish private paper book within twelve (12) weeks after the R & P is received. [ V.R. KINGAONKAR ] JUDGE NPJ/criapln2525.06