IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 157 of 2009 Satish v. Sanjay ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr S.G. Karmarkar, Adv for applicant/appellant Mr M.R. Johrapurkar, Adv for respondent Coram : A.P. Bhangale, J Dated : 5th March 2010 1. Heard Mr S.G. Karmarkar, learned counsel for appellant and Mr Johrapurkar, learned counsel for respondent. Learned counsel for appellant prays for grant of leave to appeal against the judgment and order dated 11th August 2009 passed by 7th JMFC and Special Court (u/s 138 of the N.I. Act) in Criminal Case No. 6515 of 2007 whereby complaint came to be dismissed and respondent/accused came to be acquitted of an offence punishable under Section 138 of the Negotiable Instruments Act. 2. It appears to be the case of complainant who is a railway servant earning about Rs. 10,000/- per month that the accused had taken sum of Rs. 3 lacs in cash from him for construction of his house and in lieu of that transaction, he issued cheque bearing no. 950574 drawn on Bank of Maharashtra, Kamptee Branch, District Nagpur for sum of Rs. 3 lacs. The cheque was presented for encashment on the same day with Punjab National Bank which returned dishonoured with remarks “insufficient funds”. The complainant made demand by notice in writing dated 30th April 2007 which, according to complainant, was acknowledged by the accused, but the accused failed to pay the amount demanded and, therefore, complaint was lodged for an offence punishable under Section 138 of the N.I.Act on 18.5.2007 bearing Criminal Complaint Case No.. 6515 of 2007 which after verification on 11.7.2007 was proceeded further and process was issued against the accused. Accused was charged for an offence punishable under Section 138 of the N.I. Act on the ground of alleged failure to pay the amount demanded under notice in writing. 3. Learned counsel for the appellant relied on statutory presumption under Sections 118 and 138 of the of the Negotiable Instruments Act available in favour of the complainant in order to submit that the complaint ought to have been considered as proved and, therefore, impugned order was contrary to law. 4. Learned Advocate for respondent, however, contended that learned Magistrate did consider the evidence led before it and correctly concluded that the complainant who was earning meagre amount of Rs. 10,000/- per month as salary could not have advanced such huge sum of Rs. 3 lacs to the accused, that too by cash. According to learned counsel for respondent, there can be no presumption that the cheque was issued towards legally recoverable debt under Section 139 of the N.I. Act. Therefore, it was incumbent on the complainant to prove that the cheque in question was issued for the discharge of legally enforceable debt or liability. 5. According to evidence which appears to have been led in the present case, it does appear the accused had denied liability contending that he never gave any cheque to the complainant. He also denied his signature on the cheque in question as also receipt of notice in respect of alleged dishonour of the cheque. According to him, he had given “stop payment” instructions to his Bank in respect of cheque in question and specifically contended that there was no transaction of Rs. 3 lacs, as alleged by the complainant, with him. In the course of cross-examination also, the accused stated that unused cheque from his cheque-book was missing although he did not file any complaint with police or bank. Under these circumstances, when complainant was cross-examined, he appears to have admitted that he is earning a sum of Rs. 10,000/- as salary per month. Complainant did not produce any documentary evidence to show that he was in possession of sum of Rs. 3 lacs or that he handed over cash amount of Rs. 3 lacs under any transaction to the accused. Looking to this evidence and the reasons recorded by learned Magistrate, it has to be borne in mind, in view of ruling in Krishna Janardhan Bhat v. Dattatraya reported in AIR 2008 SC 1325 that Section 139 of the N.I. Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. The onus is on the complainant to establish that there existed legally recoverable debt from the accused as on the date of cheque in question. For this reason, it appears that in the facts and circumstances of the case, when complainant is earning salary of Rs. 10,000/- per month and there is no evidence to show that he had any other source of income to possess a sum of Rs. 3 lacs which can be given as hand- loan in cash to the accused prior to the date of cheque i.e. prior to 10.4.2007, no fault can be found with the impugned judgment and order. Hence, leave to appeal is refused and consequently, appeal is dismissed. Let R & P go down. Judge. Hsj