/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3254 OF 2008 Abdul M.A. Rashid Kazi ...Applicant Vs. Rukhsana N. Kazi & Anr. ...Respondents --- Shri R.D. Suryawanshi for Applicant Shri P.A. Pole APP for State ---- CORAM: V.M. KANADE J. DATED 7TH OCTOBER,2008 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant. The Applicant has filed an appeal, challenging the judgment and order passed by the Judicial Magistrate, First Class, Thane. By the said judgment and order dated 19.7.2008, the Trial Court was pleased to acquit the Respondent Accused for the offence punishable under section 138 of the Negotiable Instruments Act. 2. Brief facts are as under: The Applicant is the original Complainant. The Respondent No.1 is the mother-in-law of the Applicant. The Complainant married with the Respondent Accused's daughter some time in the year 2006. It is the case of the Complainant that he and Respondent's husband were good friends. There are very cordial relations. The Complainant had given hand loan to the / 2 / daughter of the Respondent No.1 Shireen from time to time and the said loan was given for the purpose of treatment of husband of the Respondent- Accused. It is the case of the Complainant that the cheque was issued by the Respondent in favour of the Complainant and when the said cheque was deposited, it was dishonoured. A statutory demand notice was issued. The Respondent was denied the allegations made in the said notice and, thereafter, the complaint was filed. The Trial Court after appreciating the evidence on record, came to a conclusion that the amount, which was allegedly paid by the complainant to the Respondent Accused was not legally enforceable liability. The Trial Court further came to the conclusion from the evidence on record that the entire amount was given by the Complainant to Shireen and not to the Respondent herein. The Trial Court has further observed that though the cheque was signed by the Accused, the words and figures were put by some other person. On the basis of the evidence on record, the Trial Court, therefore, draw an inference that taking into consideration the closed relations of the Complainant and Respondent herein, it was probable that the Complainant had obtained the custody or possession of the cheque during the illness of the Respondent Accused and that he was misusing the same. 3. The Learned Counsel appearing on behalf of the Complainant / 3 / submits that the Trial Court has urged in holding that there is no legal enforceable liability or there is no previty of contract between the Complainant and the Respondent. He submitted that the Respondent had paid the earlier dues by cheque, which was honoured and only this subsequent cheque, which was dishonoured. It is clearly established that the Respondent had knowledge that the said debt was legally enforceable and, therefore, the said cheque was issued. He further submitted that the Complainant had discharged the initial burden of showing that there was a legally enforceable debt or liability and, therefore, the presumption was raised under section 139 of the Negotiable Instruments Act and this presumption had not been rebutted by the Respondent. 4. It is not be possible to accept the submissions made by the learned Counsel for the Complainant. The Trial Court has correctly observed that there was no previty of contract between the Complainant and the Respondent, more particularly, the demand notice, which was issued by the Complainant, clearly states that various amounts were given to the daughter of the Respondent Shireen, who is a legally wedded wife of the Complainant. Though the copy of the demand notice at Exhibit 29 is not annexed to this application, the Counsel for the Complainant was pleased to produce the copy of the said demand notice. I have perused the said demand notice. The / 4 / demand notice clearly states that various amounts were paid by the Complainant to his own wife Shireen. Therefore, it cannot be said that there was any debt or legally enforceable liability against the Respondent. Merely issuance of cheque is not itself sufficient for attracting the provisions under section 138 of the Negotiable Instruments Act. The Trial Court has given cogent reasons for the findings, which are recorded by the learned Magistrate. No prima facie case is made out for grant of leave. Leave is refused. Appeal does not survive. V.M. KANADE J.