IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1115 OF 2007 M/s.Vaibhav Builders .. Applicants Versus Gorakshanath Lahanu Wayal & Anr. .. Respondents Mr.Hirandani i/by Mr.C.G.Gavnekar for the applicants. Mr.V.V.Purwant i/by Mr.S.S.Gawde for the respondent no.1. Ms.A.J.Jhaveri, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 23rd January 2009. : 23rd January 2009. : 23rd January 2009. P.C.: . Heard the learned counsel appearing for the applicant. The applicant is the original complainant who is seeking special leave to prefer an appeal under sub section 4 of section 378 of the Code of Criminal Procedure, 1908. The applicant is the complainant who filed a complaint under section 138 of the Negotiable Instruments Act, 1881. 2. The applicant is a builder. The case of the applicant is that the 1st respondent accused had acquired a residential flat from him in a building constructed by him. A cheque in the sum of Rs.01,16,500/- was issued by the 1st respondent in (2) favour of the applicant towards consideration. The said cheque was dishonoured. After giving notice, the complaint under section 138 of the said Act was filed. The complainant examined himself and another witness by the name Devkisan Gangavishnu Jakhotiya. The sum and substance of the findings recorded by the learned trial Judge is that presumption under section 139 of the said Act stands rebutted by virtue of the evidence of these two witnesses. 3. The learned counsel appearing for the applicant submitted that the fact that the 1st respondent had acquired a flat in the building constructed by the applicant is not disputed. He pointed out that the fact that cheque was issued and was dishonoured is also admitted. He submitted that the 1st respondent failed to enter the witness box and therefore the presumption under section 139 of the said Act has not been rebutted. He submitted that the learned Judge has committed a gross error by passing the order of acquittal. 4. I have carefully considered the submissions. I have also perused the notes of evidence. The applicant examined himself by filing his affidavit in lieu of evidence. In the complaint as well as in affidavit in (3) lieu of evidence the applicant has not disclosed the total agreed consideration in respect of the flat acquired by the 1st respondent. In the cross-examination the applicant admitted that Mr.B.G.Jakhotiya (P.W.No.2) was looking after the money transactions of the business of building construction. He stated that the said P.W.No.2 was issuing receipts after receiving money from the customers. Later on he stated that though the amount is received by the P.W.No.2, he signs the cheque. In the cross examination the applicant admitted that he was not aware as to how information of dishonour of the cheque was conveyed to the applicant by the bank. In the cross examination, he admitted that affidavit in lieu of evidence was drafted by his advocate as per the instructions of his manager. He also admitted that he was not aware of the contents of the notice. In response to the suggestion in the cross examination that the 1st accused had paid him a sum of Rs.04,01,000/- the applicant stated that he will have to verify whether such amount has been received. Later on he admitted that he had not verified the total amount paid by the 1st respondent. 5. The P.W.No.2 admitted in the cross examination that the receipt book containing the receipts issued by (4) the applicant as regards payments received from the customers was available. However, later on he stated that the concerned receipt book was not available. Later on he stated that as the project was completed in the year 2004, he had not maintained the record. He admitted that he was not aware in what manner the amounts were paid by the 1st respondent. He also admitted that as the applicant had not formed the Society of the flat purchasers, a case has been instituted against the applicant. In the cross examination a specific suggestion was given to the witness quoting the figures of the amounts paid by the 1st respondent and dates on which the said amounts were paid by the 1st respondent to the applicant. Though the witness denied the correctness of the said suggestion, no record was produced pertaining to the payments made by the 1st respondent. All this has been considered by the learned trial Judge in the context of the case made out by the 1st respondent that he was to obtain a loan from the Life Insurance Corporation for acquiring the said flat and therefore the cheque was given by him way of security. In fact in the cross examination a suggestion was given to the applicant that the 1st respondent had obtained loan from the Life Insurance Corporation and cheques were issued by the 1st (5) respondent. He had stated that only his manager can tell from whom the cheques were received. 6. Considering the aforesaid oral evidence, the learned trial Judge has come to a conclusion that the presumption under section 139 of the said Act stands rebutted. After having perused the evidence, I am satisfied that the conclusion drawn by the learned Judge is certainly a possible conclusion. There is no independent evidence adduced by the applicant to establish that the amount payable under the cheque was a legally recoverable debt. Hence, no case is made out for grant of leave. Application of leave is rejected. (A.S.Oka,J)