1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1174 OF 2011 Ravindra Dattatray Tulpule .Applicant V/s. The State of Maharashtra & anr. .Respondents Mr.Rohit Sakhadeo i/b. Mr.Sachin Dhakephalkar, Advocate, for the Applicant Mrs.M.R.Tidke, APP, for Respondent No.1 - State CORAM : R.C.CHAVAN, J. DATE : 18TH NOVEMBER, 2011 P.C. . Heard the learned counsel for the respective parties. 2. This is an application for leave to file an appeal against acquittal of respondent No.2 by the learned Judicial Magistrate F.C., Solapur for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. A cheque of Rs.5,66,500/- issued by respondent No.2 was dishonoured. Notice of demand was 2 made. No reply was given to this notice. The defence raised was that there was no question of any loan being taken by the accused. Accused has specifically admitted having received a sum of Rs.5,66,500/- by a cheque credited to the account of accused by the complainant. He had stated that this amount was received by the accused for investment in the stock market and in the transactions which were undertaken at the instance of the complainant. There was a net loss of Rs.5,59,877.50/-. It was also contended that since the notice did not mention demand payment of the amount of dishonoured cheque specifically, the notice was bad. The learned magistrate seems to have accepted these defences. After referring to a number of Judgments, the learned magistrate seems to have come to a conclusion that since the complainant was merely an assistant with Chartered Accountant, his own father, he could not have lent such amount. Now, receipt of amount had 3 been admitted by the accused. Therefore, complainant obviously had capacity to pay this amount. The observations of the learned magistrate about rebuttal of presumption also need a scrutiny. When the accused had taken specific defence that the amount had been received by him and claims to have appropriated that amount towards transactions in which loss was suffered, it was necessary for the accused to prove this. Further the observations that notice did not specifically demand the amount of cheque and therefore, it is vitiated also needs to be examined. Whatever may be the defect in the notice, if accused did want to comply with the demand after receipt of summons of the Court he could have paid the amount. In view of this, leave granted. Admit. Call for R & P. 3. Action under Section 390. (R.C.CHAVAN, J.)