((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3542 OF 2008 T.M.Mathew Applicant versus Vyankatrao Papayya Jedei & anr. Respondents Venkatesh Shetty for applicant. Subhash B. Desai for respondent. Y.S.Shinde, APP for the State. CORAM : A.S.OKA, J. DATE : 24th March 2009 PC : 1. Heard learned counsel for the applicant in support of the application for special leave to prefer an appeal. 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"). The learned counsel for the applicant has taken me through the notes of evidence and the impugned order. He submitted that in view of presumption under section 139 of the said Act, the burden was on the accused to rebut the said presumption and the said presumption has not been rebutted by the accused. He submitted ((-2-)) that there is no explanation as to why the cheque in dispute admittedly issued by the accused was in the custody of the applicant. He submitted that merely because the income tax return of the applicant is not produced or merely because the amount is not reflected in the income tax return, there is no reason to draw an adverse inference. He submitted that the learned Judge has committed a gross error by relying upon the decision referred to in paragraph 9 of the impugned judgement which does not lay down any ratio. He invited my attention to the findings recorded by the learned Judge in paragraph 8 of the impugned order. He submitted that the findings recorded in the said paragraph are perverse apart from the fact that same are contrary to section 139 of the said Act. He submitted that this was a case where the applicant had not discharged his burden by rebutting the presumption and, therefore, the view taken by the learned Judge is perverse. He submitted that the burden on the accused to rebut the presumption under section 139 of the said Code is heavier than the burden which is required to be discharged for rebuttal of presumption under section 114 of the Indian Evidence Act. He submitted that ((-3-)) the impugned order is perverse. 2. I have carefully considered the submissions. I have perused the complaint and notes of evidence. The presumption available under section 139 of the said Act is limited to the fact that the cheque was issued in discharge of a debt or liability. The said presumption does not extent to the fact that the cheque was issued towards a legally "enforceable" debt or liability and therefore the burden to prove that the cheque was issued towards a debt or liability which is legally enforceable always remains on the complainant. The Apex Court also held that there is a burden on the complainant to prove the guilt beyond a reasonable doubt but the defence of the accused can be proved on the basis of preponderance of probability. 3. According to the case of the applicant, the first respondent was very well known to him and he needed a sum of Rs.1.50 lakh for acquiring an auto rikshaw. Accordingly, the applicant had advanced a sum of Rs.1.50 lakhs to the first respondent without interest and the first respondent agreed to repay the said amount by ((-4-)) instalments. According to the applicant, cheque dated 15th July 2004 was issued by the first respondent in the sum of Rs.1,27,500/- in discharge of the said debt of Rs.1.50 lakhs. In the affidavit in lieu of examination-in-chief, the applicant has come out with a case that there was a writing executed by the first respondent on a stamp paper agreeing to repay the amount by instalments. However, he has come out with the case that the said writing has been misplaced. In the cross examination the applicant stated that he did not enquire as to whether first respondent purchased the vehicle after taking the loan from him. He came out with a case in the cross examination that for the day to day expenditure he was keeping a sum of Rs.10,000/- with him. He specifically stated that for advancing a sum of Rs.1.50 lakhs to the first respondent he had collected the amount from his friends. He expressed inability to tell the Court as to whether any amount was withdrawn by him from his bank account for paying the same to the first respondent. He failed to tell the Court as to from whom he had taken the money for advancing the same to the first respondent. In the cross examination he admitted that the ((-5-)) amount was advanced by him when he was in employment as a Stock Superintendent. He was drawing monthly salary of Rs.15,000/-. He stated that while in service he was filing the income tax returns and currently also he was filing the income tax return. He specifically stated that the entries have been made of the transaction with the first respondent in the income tax returns. Immediately thereafter he stated that in the income tax statement, he has not disclosed the amount due from the respondent. A question was put to him as to whether he was willing to file income tax return in the Court. His response was that as his income was less he felt that it was not necessary to file the income tax return. 4. This is not a case where there is mere failure on the part of the applicant to produce the income tax return. This is a case where he disclosed that his salary was Rs.15,000/- p.m. when he had advanced the amount and he had borrowed the amount from his friends for paying the same to the first respondent. He even could not disclose the names of said friends from whom he had taken the amount. If all these admissions of the applicant are ((-6-)) considered, the view taken by the learned Judge that the presumption under section 139 of the said Code stood rebutted is certainly a possible view which could have been taken only on the basis of record. 5. There was no independent evidence adduced by the applicant to show that he had advanced a sum of Rs.1.50 lakhs to the first respondent. 6. In my view, no case is made out for interference. The application for leave is rejected. 7. It is, however, made clear that the observations made in this order are for limited purposes of considering the prayer for grant of leave and none of the observations made in this order shall be construed as any finding on the rights and liabilities of the parties. (A.S.OKA, J.)