1 APPLN2978.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2978 OF 2010 IN CRIMINAL APPEAL NO. OF 2010 Shri Shankar Tamma Jadhav ..... Applicant. v/s Chintamani Sopan Kamble and another ...... Respondents. Mr. Anil V. Dhavale for the applicant. Mr. D.R. More, APP for the State. CORAM: V.M. KANADE, J. DATE : 16th November, 2010 P.C:- 1. Heard the learned Counsel appearing on behalf of the applicant. 2. This application is filed seeking leave to file an appeal against the judgment and order passed by the Chief Judicial Magistrate, Pune dated 26/4/2010. By the said order, the 2 APPLN2978.10 learned Magistrate was pleased to dismiss the complaint filed by the applicant herein for the offence punishable under section 138 of the Negotiable Instruments Act. 3. I have perused the judgment and order of the Trial Court. A complaint was filed by the applicant herein, alleging that a cheque for an amount of Rs 30,000/- issued by the respondent/accused was dishonoured when it was deposited by the complainant in his bank. According to the complainant, there was a talk between complainant and the accused for the sale of land and that in the month of April 2008, the accused executed Power of Attorney and Development Agreement in favour of the complainant and he has paid an amount of Rs 30,000/- to the accused as earnest money. According to him, the accused did not execute Power of Attorney and the Development Agreement and issued a cheque of Rs 30,000/- which was dishonoured. 4. The learned Counsel for the applicant submitted that the Trial Court has not taken into consideration the answers given by the accused in his statement under section 313 of the Cr.P.C. wherein he has admitted having received Rs 30,000/-. He further submitted that accused has also admitted that he had issued a cheque of Rs 30,000/- which was dishonoured. 5. In my view, submissions made by the learned Counsel 3 APPLN2978.10 for the applicant cannot be accepted. It is a well settled position in law that while exercising jurisdiction under section 378 sub-clause (4) of the Cr.P.C., this Court cannot re- appreciate the evidence on record and come to a different conclusion unless the finding recorded by the Trial Court is perverse. 6. The Trial Court observed that though in the complaint complainant has stated that he was having friendly relations with the accused, in the cross-examination he admitted that he was carrying on business of purchase and sale of land since 20 years and that the accused was not his friend. The Trial Court was, therefore, justified in coming to the conclusion that in view of the admission, there was no agreement of sale between the complainant and the accused in respect of the land belonging to the brother of the accused and, therefore, there was no question of making payment to the accused. Further, it is quite well settled that on the basis of answers given by the accused in his statement under section 313 of Cr.P.C., the accused cannot be convicted. The burden of proving the case is entirely on the complainant after presumption under section 139 of the Negotiable Instruments Act is rebutted by the accused. In my view, therefore, in view of the admission given by the complainant, the finding recorded by the Trial Court cannot be said to be perverse. No case is therefore made out for interfering with the judgment and order passed y the Trial Court. Leave is, 4 APPLN2978.10 therefore, refused. Appeal does not survive. It is accordingly disposed off. V.M. KANADE, J.