1 appp5282-09 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICTION NO. 5282 OF 2009 Ravi Agarwal .. Applicant Vs. the State of Maharashtra and another .. Respondents Mr. Chetan Akerkar for the applicant Smt. M. M. Deshmukh, APP for the State CORAM : N. D. DESHPANDE, J. DATE : 1 st April, 2011 P. C. 1. Heard. 2. This is an application for leave to appeal against the order of acquittal dated 6 th October, 2009, passed by the leanred Special Motropolitan Magistrate, Small Causes Court, Mumbai in Case No. 1388 of 2007. 3. Indisputedly, a complaint under Section 138 of the Negotiable Instrument Act, 1981 “popularly known as cheque bouncing case”, came to be registered against the accused. The case involves bouncing of three cheques for the total value of Rs. 3,50,000/-. The said cheques were allegedly issued by the accused 2 appp5282-09 to the complainant for discharge of whole or part of the liability of 3,50,000/- paid by the complainant to her in March, 2006/- in two instalments as hand loan and the said amount was to carry interest @ 14% p.a. The cause of action for filing the case is bouncing of the cheques and the demand notice issued thereafter. 4. Admittedly, there is no evidence, documentary or any independent, to show that an amount of Rs.3.50,000/- was given to the accused in two instalments by the complainant to the accused. During the course of hearing it is stated that the said amount did not belonging to the complainant and therefore it was not shown in the income tax return. According to the complainant, the said amount belongs to his relative, whose name is also not disclosed by him in his cross examination. Thus, on this main ground the trial Court dismissed his claim as legally enforceable liability. 5. Once it is admitted that the money which was paid does not belong to him, only because he holds some cheques for repayment of such amount which is due to others and not to him cannot be said in the possession as “holder in due course” for which there is presumption in his favour under section 139 of the NI Act. Unfortunately in the present case, the said presumption is also not in favour of the applicant. It was further pointed out that there was 3 appp5282-09 acknowledgement of the liability but the same appears to have been explained by the accused saying that it was for the discharge of liability of the complainant’s in other firms viz. Shreejee Synthetic unconnected with the alleged story of giving hand loan of Rs.3,50,000/- as per his complaint. Admittedly the parties have business relations as both of them are dealing in textile business. Thus accused had offered explanation against the passing of the cheques. 6. Offence under Section 138 of the N.I. Act is said to be a deemed offence. Primarly there must be existing legal liability and the cheque is given as against such liability for its discharge in whole or in part. For filing such complaint, the legal notice is to be issued and thereafter if there is no payment made and not otherwise. In such criminal case only during the course of trial presumption is available. However, on the basis of bouncing cheque, no liability can be presumed. Liability must exit. 7. In the light of the above stated facts and submissions, I carefully examined the impugned judgment and order of acquittal of the Trial Court. There is detail discussions made about the entire evidence of both the parties. There is no complaint of denial of any opportunity of fair trial and the matter came to be decided on merit. 4 appp5282-09 There is no perversity in the findings recorded by the Trial Court. All the evidence has been discussed in the light of the authorities cited by both the parties. No interference is required. No case is made out. Leave is refused. 8. The application is rejected. ( N. D. DESHPANDE, J. )