1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION (APPA) NO. 340/2009 Vijay Vitthalrao Nimbarte ..vs.. Mr. Vinod Barbure - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. S. M. Bahiwala, Advocate for applicant. None for the non applicant, though served. CORAM : M.N.GILANI, J. DATE : NOVEMBER 30, 2011. 1. Heard learned counsel for the applicant. None for the non applicant, though served. 2. The applicant is original complainant in Summary Criminal Case No. 20552/2007 on the file of Judicial Magistrate First Class, Nagpur. In January-2007, the accused-non applicant approached applicant for a hand loan of Rs.40,000/-. The applicant advanced the hand loan and by way of security, the non applicant issued a cheque. On 25.07.2007, the cheque was presented for encashment. It was dishonoured for insufficient funds. Therefore, the appellant filed the complaint. The complainant examined himself and relied upon the documentary evidence. In rebuttal, the accused did not enter the witness box. Perusal of the judgment impugned, shows that the learned 2 Magistrate thrown the entire burden on the complainant ignoring the fact that the accused did not even enter into the witness box to disown the transaction or the fact that the cheque was delivered by him to the complainant. The entire approach of the learned Magistrate appears to be incorrect, particularly while deciding the case under Section 138 of the Negotiable Instruments Act. 3. For the foregoing reasons, leave as prayed for is granted. 4. The application stands disposed of accordingly. 5. Appeal : Admit. Call record and proceedings. 6. Action under Section 390 of the Code of Criminal Procedure. JUDGE kahale