((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1668 OF 2007 Padmakar Dhondopant Panse Applicant versus Sanjeev Madhavrao Shinde Respondent A.S.Pratinidhi for applicant. Narendra C. Walimbe for respondent no.1. J.P.Yagnik, APP for the State. CORAM : A.S.OKA, J. DATE : 30th March 2009 PC : 1. Heard learned advocate for the applicant. This is an application under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. The applicant is the complainant in a complaint filed under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act"). 2. The case made out by the applicant in the complaint is that in discharge of financial commitments made by the first respondent-accused, he had issued a cheque dated 25th July 2003 in favour of the applicant ((-2-)) in the sum of Rs.8.00 lakhs. The said cheque was dishonoured and, therefore, present complaint was filed. 3. The learned counsel appearing for the applicant submitted that the learned Trial Judge has completely brushed aside the presumption under section 139 of the said Act. He pointed out that the fact that the cheque in the sum of Rs.8.00 lakhs was issued by the first respondent-accused has been admitted. He submitted that the original date mentioned on the cheque was 20th January 2002 and the first respondent admittedly got the date changed to 25th July 2003. He submitted that in view of this admitted position, it was for the first respondent-accused to lead evidence to rebut the presumption under section 139 of the said Act. He submitted that when the cheque was admittedly issued by the first respondent, there was no explanation forthcoming from the first respondent as to why the said cheque was issued by him especially when his case was that he had borrowed a sum of Rs.60,000/- from the applicant. He, therefore, submitted that the impugned order is perverse. ((-3-)) 4. I have given careful consideration to the submissions. It must be noted here that in the complaint as well as in the affidavit in lieu of examination in chief, the applicant has not specifically come out with the case that he had advanced a sum of Rs.8.00 lakhs to the first respondent. The statement made by the applicant in his affidavit in lieu of examination in chief is that towards the payment of "said" financial commitments by the Accused, he issued in his favour the cheque bearing No.273246, dtd.25.7.2003, drawn on Shahu Sahakari bank Ltd; Dhankawadi Branch, Pune for Rs.8,00,000/-. It will be necessary to refer to the cross examination of the applicant. In the cross examination the applicant has stated that :- (a) he was getting Rs.25,000/- as salary and he had retired from a construction company; (b) he had given an amount of Rs.8.00 lakhs from time to time by cash to the first respondent but he was unable to state the exact period as to when he had given the said amount to the first respondent; ((-4-)) (c) there was no documentary evidence to show that he had given the amount to the accused; (d) he was unable to state any reason as to why it is not mentioned in the complaint for what purposes and how much amount was paid by him to the first respondent; (e) he had given all the amounts to the first respondent from time to time by cash; (f) he had paid a sum of Rs.60,000/- to the first respondent by cheque dated 20th May 1998 and till the date of deposition he had not demanded repayment of the said amount. 5. When a question was specifically asked as a whether he had any documentary evidence to show that a sum of Rs.8.00 lakhs was available with him, the response of the applicant was that he was serving in foreign country and, therefore, there was no difficulty for him to have such big amount available with him. He admitted that when he had paid a sum of Rs.8.00 lakhs to the first respondent, he was paying the income tax. He, however, stated that he was unable to remember whether he had shown the amount of ((-5-)) Rs.8.00 lakhs paid to the first respondent in his income tax return. He admitted that he was not having any documentary evidence to show that there was a transaction of Rs.8.00 lakhs except the disputed cheque. 6. If these are the admissions of the applicant in the cross examination, surely all this was sufficient to rebut the presumption under section 139 of the said Act. There is no independent evidence adduced by the applicant to show that he had advanced a sum of Rs.8.00 lakhs to the first respondent. 7. In the circumstances, the view taken by the learned Trial Judge that the guilt of the first respondent was not established beyond reasonable doubt is certainly a possible view which could have been taken on the basis of evidence on record. Hence, no case is made out for grant of leave. The application is rejected. 8. It is made clear that the observations made in this order are for limited purposes of considering the prayer for grant of leave. None of the observations made herein shall be ((-6-)) construed as any finding recorded on the rights and liabilities of the parties. (A.S.OKA, J.)