IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 240 OF 2008 IN STAMP NUMBER MAIN NO. 2654 OF 2008 PRADIP SHIRODKAR ... Applicant Versus SUBHASH NAIK AND ANR., ... Respondents Mr. Marvin D'souza, Learned Counsel for the Applicant. Mr. J. Godinho, Learned Counsel for the Respondent No.1. Coram:- C. L. PANGARKAR, J. Date:- 12th January, 2009 P.C.: Heard learned Counsel for the Applicant as well as the respondents. 2. This application has been filed before me seeking leave to appeal against the order passed by the JMFC in Criminal Case No.450/OA/2005/C by which the Trial Court has acquitted the respondent No.1 of the offence punishable under Section 138 of the Negotiable Instruments Act. 3. The complainant contended that he had advanced a sum of Rs.7,15,000/- to the accused to purchase a bus.Since the accused did not retunr the amount to the complainant, the accused issued a cheque to the complainant. It is alleged that the cheque was dishonored on account of insufficient funds in the account of the accused being inoperative. The accused did not dispute that the cheque was dishonored. 4. The learned Magistrate found that infact the complainant failed to prove that any amount has been advanced to the accused and that the accused had issued a cheque in favour of the complainant. 5 The learned counsel for the complainant contended that there is a presumption under Section 139 that the cheque has been issued towards the discharge of his liability. The court did not consider this facts at all. 6. The learned counsel for the accused on the other hand submitted that there is presumption and the cheque has been issued for discharge of the liability in this paraticular case. The said presumption stood upheld. 7. After having gone through the evidence it is clear that the complainant has not placed on record any evidence showing that a sum of Rs.7,15,000/- was advanced to the accused. The learned Magistrate has righly found that there is no evidence as such that large amount was advanced. 8. After having gone through the evidence it is clear that the complainant has admitted that this amount was not shown by him in the income tax return. When it was asked to him whether this amount was shown in the income tax return. From this it is clear that the complainant has given evasive answers and it is also quite difficult to accept that such a large amount of Rs.7,15,000/- was advanced without being any document to that effect. 9. It was submitted on behalf of them that the accused was neither the dealer. In view bus on second hand bus and therefore there was no reason for complainant to advance such sum to accused. The arguments and this fact is quite sound. 10. In the circumstances, the story of the complainant that the amount was advanced to the accused for purchase of the bus, just, cannot be accepted. I do not find that the learned Magistrate has committed any error in acquitting accused at all. The application for leave to appeal, is dismissed. C. L. PANGARKAR, J. ah