1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Application No.2235 of 2009 (Leave to appeal) Vinayak Nivrutti Gondhale .. .. Applicant (Org.Complainant) v/s. Sopan Ananda Thakar & anr. .. Respondents Mr.Surel S. Shah for Applicant. Mr.K.K.Malpathak for Res.No.1. Mrs.A.A. Mane, APP for State. ---- CORAM : SMT.ROSHAN DALVI, J. Dated : 17th November 2009 P.C. : 1.The Applicant has applied for leave to appeal against the judgment and order dated 22.4.2009 of the Judicial Magistrate,First Class, Pune, acquitting the accused. The Applicant, who is the original complainant in the complaint under Section 138 of the Negotiable Instruments Act, filed upon the dishonour of cheque dated 23.3.2007 on 26.4.2007. It is the case of the complainant that the parties had entered into a Sale- deed to sell the land of Respondent No.1 to him on 25.5.1992. The complainant had paid Rs.17,070/- to Respondent No.1, who owned the land. The Sale-deed is unregistered. Until 2007, nothing had transpired. He 2 lodged a complaint in March 2007 because Respondent No. 1 sought to sell the land to another person. The complainant sought to settle that dispute and in that settlement, he had issued the cheque on 23.7.2007. 2.The complaint is not produced. It must be understood as to why when a complaint is filed in March 2007 itself, the accused would come for immediate settlement. The cheque is admittedly issued in the Police Station. The complaint was already filed. It cannot be accepted that on this issue of the cheque the complaint would have been withdrawn if the cheque was not cleared. It is to be understood as to why the accused would be called to the Police Station and why he would be called so speedily to settle the dispute in case of an offence involving only the sale of his property to a third person. 3.The Sale-deed with the complainant was of 1992. He had received only Rs.17,070/- in 1992. The learned Judge has observed that for 15 years the Applicant has not put up any construction on the plot purchased by him and that the complainant has not produced any documentary evidence to show his possession upon the purchase of the property. 4.Under these circumstances, the presumption, if any, of 3 the passing of the consideration is shown to be rebutted by the accused. Thereafter it is for the complainant to show that the cheque was issued in respect of a legally enforceable liability. That has not been done. That aspect has been brought out in paragraph 8 of the impugned judgment. 5.Under these circumstances, the issue of the cheque itself becomes suspect and hence, the defence of the accused that it was forcibly taken in the Police Station is required to be accepted. That has been correctly done by the learned Magistrate. Leave to appeal is refused. (SMT.ROSHAN DALVI, J.)