1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.4274 OF 2008. Bharatkumar S/o Chandrahans Satav ... Applicant. Versus Shivaji Nilkanth Shinde and another ... Respondents. ... Mr.S.P.Chapalgaonkar, advocate for the applicant. Mr.V.D.Hon, advocate for the Respondent No.1. Mr.K.S.Patil, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 05.08.2009. PER COURT 1. This is an application, seeking leave to appeal U/s 378(4) of the Cr.P.C. 2. The applicant is original complainant. He instituted a private complaint case bearing SCC No.551/2001, for offence U/s 138 of the 2 Negotiable Instruments Act, allegedly committed by the Respondent. After the trial, the Respondent No.1 came to be acquitted. According to the applicant, the learned Judicial Magistrate did not properly consider availability of presumption U/s 139 of the N.I.Act. It is contended by Mr.Chapalgaonkar, that the statutory presumptions ought to have been drawn by the trial Court. He referred to "Purshottam S/o Maniklal Gandhi Vs. Manohar K.Deshmukh and another"" 2007 (1) Mh.L.J. 210, in support of his contention. 3. What transpires from the record is that the applicant did not specifically plead in his complaint as to how he had developed relationship of mutual trust with the Respondent No.l and on what particular date he had lent the amount of Rs.70,000/- (Rupees seventy thousand) for which the cheque in question was issued on 5.9.2000. In his oral statement, however, he deposed that the amount was lent to the Respondent on 30.8.2000, for period of one week. The applicant is an advocate. The Respondent is not member of 3 the same profession or related to the applicant even remotely nor there was prior friendship between them on account of contemporary education together or like reasons. The applicant relied upon execution of a collateral acknowledgment appearing from the letter filed at Exh.37. Ordinarily, if the loan amount was given only for one week and due to the fact that the applicant reposed trust in the Respondent No.1 then there was no necessity to obtain a separate collateral acknowledgment letter Exh.37. It was the defence of the Respondent No.1 that he had not borrowed any amount from the applicant. According to the Respondent, he had obtained Rs.35,000/- (Rupees thirty five thousand) from Shri Pimpalwadkar, advocate with whom the applicant was working as Junior. It was the case of the Respondent No.1 (accused) that he issued the cheque in question by way of security for the repayment of said Rs. 35,000/- (Rupees thirty five thousand) and subsequently had repaid that amount to Shri Pimpalwadkar, advocate but the cheque has been misused. 4 4. The trial Court also noticed that the applicant was not having sufficient funds as on the date of the alleged transaction to lend the amount to the Respondent. The applicant admitted that he was indebted to the Central Bank of India. He was facing Civil litigation for recovery of the loans obtained from the said Bank. The copies of the plaint are also placed on record. The learned Judicial Magistrate noticed that Shri Pimpalwadkar, advocate and his family members have been charge-sheeted for offence punishable under the Bombay Money Lending Act. It was further revealed that as per the extract of account (Exh.66), on 30.8.2000 only amount of Rs.1,946-28 (Rupees one thousand nine hundred forty six and paise twenty eight only) was at credit in the Saving account of the applicant. It is contended that the applicant was having accounts with some other Banks also. However, he did not produce extracts of such accounts. Moreover, he admitted that he had other accounts prior to said period of transactions. 5 5. It is true that the accused is required to discharge burden of rebuttal in respect of presumption available U/s 139 of the N.I.Act. The Apex Court in "Krishna Janardhan Bhat Vs. Dattatraya G.Hegde" 2008 AIR SCW 738, held that the accused is not required to step into the witness box and he may discharge his burden on the basis of material already brought on record. The Apex Court observed that Section 139 of the N.I.Act, gives rise to the presumption in favour of holder of the cheque that same has been issued for discharge of any debt or other liability but existence of legally recoverable debt is not a matter of presumption U/s 139 of the N.I.Act. The presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 of the N.I.Act, should be delicately balanced. It is observed by the Apex Court that such balancing acts, indisputably would largely depend upon the factual matrix of each, the materials brought on record and having regard to legal principles governing the same. The Apex Court observed : 6 "The Courts must be on guard to see that merely on the application of presumption as contemplated U/s 139, the same may not lead to injustice or mistaken conviction." 6. In the present case, it is explicit that the applicant could not establish the fact that he was financially viable to spare amount of Rs.70,000/- (Rupees Seventy thousand only) on 30.8.2000. As stated before, the applicant admitted that he had accounts in 2/3 other Banks but he was unable to give details thereof. The applicant could not spell out how there were friendly relations or mutual trust developed between himself and the Respondent. The Respondent brought on surface of record certain circumstances which tend to show that his transaction was with Shri Pimpalwadkar, advocate and not with the applicant. Considering these aspects, it will have to be said that the presumption was properly discharged by the Respondent and the acquittal rendered is not demonstratively faulty. Consequently, the leave 7 to appeal is refused and the appeal is dismissed. (V.R.KINGAONKAR,J.) asp/office/Crapp427408