IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.341 OF 2008 Mrs.Suvarna Sanjay Gandhi .. Applicant Versus Shantilal Sukhraj Kothari & Anr. .. Respondents Mr.Jayesh Bansilal Kocheta for the applicant. Mr.Anurag Jain for the respondent No.1. Mr.Y.S.Shinde, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 03rd April 2009. : 03rd April 2009. : 03rd April 2009. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . The submissions of the learned counsel appearing for the applicant and the learned counsel appearing for the 1st respondent are heard. The applicant is the original complainant in a complaint under section 138 of the Negotiable Instruments Act, 1881. The case of the applicant is that she had advanced a sum of Rs.2 lacs to the 1st respondent accused as the 1st respondent was in financial difficulty and that the applicant had family relationships with the 1st respondent. In discharge of the alleged liability of repayment of the said loan, a cheque dated 25th June 2004 was issued by the 1st respondent which has been dishonoured. After serving (2) notice of demand, the present complaint has been filed. Though the applicant had attempted to invoke section 420 of the Indian Penal Code, the process appears to have been issued only under section 138 of the Negotiable Instruments Act, 1881. The order of acquittal passed by the learned trial Judge is on two grounds. The first is that there was no proper service notice and secondly, the presumption under section 139 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act) stands rebutted. The trial Court has held that the applicant has not adduced any evidence to prove that he had advanced a sum of Rs.2 lacs to the 1st respondent. 2. The learned counsel appearing for the applicant invited my attention to the impugned order as well as notes of evidence. He stated that as far as service of demand notice is concerned, an employee of the postal department was examined. He submitted that the learned Judge has referred to certified copy of the Index II produced by the 1st respondent which shows that residential flat of the 1st respondent was transferred on 03rd August 2004. He pointed out that the notice was attempted to be served at the shop premises of the 1st respondent and the same was returned with the remark (3) "refused". He submitted that even the warrant issued by the learned Magistrate to the complaint was served at the same address which is mentioned in the notice. 3. He submitted that the learned trial Judge has committed a gross error by holding that the presumption under section 139 of the said Act stands rebutted. He has invited my attention to the decision of the Apex Court in the case of Hiten P. Dalal v. Bratindranath Banarjee [(2001) 6 Supreme Court Cases 16]. He submitted that the finding recorded by the learned Judge that the presumption under section 139 of the said Act stands rebutted is completely contrary to the law laid down in the case of Hiten Dalal (supra). The learned counsel appearing for the 1st respondent supported the impugned judgment and order. 4. I have perused a true copy of the complaint as well as notes of evidence. It is well settled proposition of law that for rebutting the presumption under section 139 of the said Act, it is not necessary for the accused to step into the witness box. In a given case, the presumption can be rebutted even on the basis of the evidence adduced by the complainant and the material on record. In a criminal case burden on the (4) complainant is different from the burden of the accused. Normally, the burden on the complainant is to prove the guilt beyond reasonable doubt. However, the accused is entitled to prove his defence on the basis of preponderance of probabilities. 5. The perusal of the averments made in the complaint show that the applicant had family relationship with the 1st respondent and as the 1st respondent was in financial difficulty, the applicant had advanced a sum of Rs.2 lacs from time to time in the period between January 2004 to March 2004. Same are the averments made in the affidavit in lieu of examination-in-chief of the applicant. In the cross-examination, the applicant stated that her husband was employed with Mahavir Trading Company. She stated that she had paid the amount to the 1st respondent by instalments and she was prepared to produce the entries made by her in writing. She stated that the minimum amount paid by her to the 1st respondent was Rs.15,000/- and maximum was Rs.80,000/-. She stated that though her occupation has been shown as household in the affidavit in lieu of examination-in-chief, she was carrying on a small business of selling sarees. She stated that she had not obtained any licence in under the Shops and (5) Establishments Act, 1948 for the said business. She stated that she was possessing certain amount which was to be utilised for construction of her house. As the construction activity was stopped, she was in possession of the said amount. She stated that she was not possessing PAN Card of the Income Tax. She could not disclose the salary of her husband. 6. The learned counsel appearing for the applicant submitted that the applicant had made entries of the amounts advanced by her from time to time by the 1st respondent. Perusal of the examination-in-chief and even the cross-examination shows that none of the said entries were proved before the Court. Perusal of the complaint as well as affidavit in lieu of examination in chief shows that the applicant has shown her occupation as household. Though the applicant admitted that her husband was employed with Mahavir Trading Company, she was unable to disclose as to what was salary drawn by her husband. Notwithstanding the fact that she had specifically come up with a case that her occupation was household, in the cross-examination, she attempted to make out a case that she was carrying a business of selling sarees but she had to admit that she had not obtained a licence under the Shops and Establishments (6) Act. She admitted that she was not paying Income Tax and was not possessing PAN Card. She attempted to state that some amount was balance with her which was to be utilised for construction of her house. However, she has not disclosed the exact amount and she vaguely stated that she was possessing some amount. It must be noted here that case of the applicant is that within span of three months she has advanced a sum of Rs.2 lacs to the 1st respondent. If all these facts disclosed in the cross-examination are considered together, the view taken by the learned trial Judge that the presumption under section 139 of the said Act stood rebutted is certainly a possible view which could have been taken on the basis of the averments made in the complaint and the cross-examination of the applicant. Assuming that the submissions made by the learned counsel appearing for the applicant are accepted, at highest what can be stated is that another view could have been taken on the same set of evidence. There is no perversity in the view taken by the learned trial Judge that the presumption under section 139 of the said Act stood rebutted. There is no independent evidence adduced by the applicant that she had advanced sum of Rs.2 lacs to the 1st respondent. (7) 7. Hence, the view taken by the learned trial Judge that the guilt of the 1st respondent is not established is certainly a possible view. Hence, it is not necessary to deal with the other controversy regarding service of demand notice. 8. Application for leave is rejected. It is, however, made clear that the observations made in this order are for the limited purposed of examining the prayer for grant of leave and none of the observations made herein shall be construed as a finding on the rights and liabilities of the parties. (A.S.Oka,J)