- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.1417 OF 2008 APPLICATION NO.1417 OF 2008 APPLICATION NO.1417 OF 2008 Padmakar Narayan Adake ...Applicant vs. Sagaji Kerba Modak and another ...Respondents Mr.Jaydeep S. Deo for the Applicant Ms A.T.Javeri A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : FEBRUARY 20,2009 : FEBRUARY 20,2009 : FEBRUARY 20,2009 P.C.: P.C.: P.C.: 1. Heard Advocate for the Applicant in support this application under sub section 4 of section 378 of the Code of Criminal Procedure,1973. The complainant filed a complaint under section 138 of the Negotiable Instruments Act,1881. The specific case made out in the complaint is that the 1st respondent-accused was in need of money for personal and business purposes and on the request made by him, a sum of Rs.1,30,000/- was paid by the applicant to the 1st respondent by way of advance/loan. There were two cheques issued favouring the applicant by the 1st respondent in discharge the said liability. The said cheques were dishonoured and therefore the present complaint was filed. By the impugned order, the 1st respondent has been acquired. 2. The learned counsel for the applicant has taken me through the notes of evidence and other material documents on record. He submitted that the 1st respondent (accused) had virtually admitted the liability and in fact his case was that a sum of Rs.30,000/- was repaid by him to the Applicant. He, - 2 - therefore, submitted that the learned Judge has committed an error by acquitting the 1st respondent. 3. I have considered the submissions. The applicant admitted in the cross examination that there was settlement between himself and the 1st respondent. He stated that he has filed a suit for recovery of the amount from the 1st respondent. He stated that he does not desire that the 1st respondent should be punished. Apart from this he categorically admitted that the 1st respondent had not taken a sum of Rs.1,30,000/- by way of hand loan. All these admissions itself rebut the presumption under section 139 of the said Act of 1881. The applicant admitted that there is no writing made as regards the amount allegedly advanced to the 1st respondent. He admitted that this amount was not shown by him in his income tax returns. Thus, the applicant has not discharged the burden on him which he was under an obligation to discharge after the presumption under section 139 of the said Act was rebutted. Apart from that the Applicant himself deposed that there was a settlement between himself and the 1st respondent. 4. No case is made out for grant of leave. Application is rejected. It is however made clear that the observations made in this order are for limited purposes of considering the prayer for grant of leave. Nothing observed in this order shall be construed as any finding on the rights and liabilities of the parties. - 3 - JUDGE JUDGE JUDGE