- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.1261 OF 2008 APPLICATION NO.1261 OF 2008 APPLICATION NO.1261 OF 2008 Gopinath Vitthal Walunj ...Applicant vs. Sou.Meena Anand Deshpande & Anr. ...Respondents Mr.Ashok Tajane for the applicant Mr.J.P.Yagnik A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 26,2009 : MARCH 26,2009 : MARCH 26,2009 P.C.: P.C.: P.C.: 1. Heard Advocate for the applicant and the Advocate for the first respondent. This is an application under sub section 4 of section 378 of the Code of Criminal Procedure,1973. The applicant filed a complaint under section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as the said Act). The case of the applicant is that the first respondent had borrowed a sum of Rs.1,00,000/- from him in February 2006 which was repayable in one month. In discharge of the said liability, the first respondent issued a cheque in the sum of Rs.1,00,000/- which was dishonoured. In the complaint filed by the applicant it is stated that the cheque was dishonoured on 9th September 2006. Notice of demand dated 20th September 2006 was issued by the applicant for the said dishonour and therefore, the present complaint was filed. 2. The learned trial Judge held that the applicant has failed to established that the cheque was issued by the first - 2 - respondent in discharge of the legally enforceable debt. The defence of the first respondent was that the she has purchased a residential flat from the applicant and the cheque was taken by the applicant as a security. It is alleged that without intimation to the applicant, the cheque was deposited by the first respondent. 3. The learned counsel for the applicant submitted that the learned trial Judge has completely ignored that in view of the statutory presumption under section 139 of the said Act that there was no obligation to lead evidence to show that the cheque was issued in discharge of legally enforceable debt unless evidence was adduced by the accused for rebutting the said presumption. He relied upon the sale deed dated 9th November 2005 executed by the applicant in favour of the first respondent and her husband. He submitted that there is no reference in the said document to any cheque given by way of security. He submitted that the said document is sufficient to discard the defence. He, therefore, submitted that the learned trial Judge has committed an error by acquitting the first respondent. 4. The learned counsel for the first respondent invited my attention to the finding recorded in paragraph 22 of the impugned Judgment. He submitted that the cheque in dispute was also earlier deposited and a notice was issued by the - 3 - applicant on the basis of its first dishonour. He pointed out that the present complaint has been filed on the basis of the re-deposit of the cheque and the second notice issued on the basis of the dishonour after re-deposit. He invited my attention to the cross examination of the applicant. The learned counsel for the applicant submitted that there is no such admission on the part of the applicant in evidence and in fact on the basis of the first dishonour, no notice was issued by the applicant. 5. I have carefully considered the submissions. In paragraph 22 of the Judgment, there is finding recorded by the learned trial Judge that on 6th May 2006, a cheque was deposited by the applicant. The said cheque was dishonoured. A notice was issued on the basis of the said dishonoured cheque which is not filed on record. I have perused the certified copy of the original cross examination of the applicant recorded in writing. In the said cross examination, there is a categorical admission that the cheque was deposited by him on two occasions. The cheque was firstly deposited on 6th May 2006 and at that time, a notice was sent by him to the first respondent. He further stated that on 9th September 2006, the cheque was again deposited. On this factual aspect, there is categorical finding in paragraph 22 of the Judgment of the trial court. - 4 - 6. Thus, this is an admitted position that the complaint was filed on the basis of the second dishonour and the second notice. It will not be out of place to rely upon the decision in case of Sadanandan Bhadran Vs. Madhavan Sunil Kumar [(1998) 6 SCC 514]. In view of the said decision of the Apex Court, the present complaint based on second dishonour of the same cheque and the second notice was not maintainable. 7. The learned Judge observed that in the complaint as well as in the affidavit in lieu of examination in chief, the applicant has not come out with particulars and the details of a sum of Rs.1,00,000/- allegedly paid to the first respondent and the manner in which the loan was advanced. The learned Judge has observed that there is no documentary evidence to show that the loan was advanced. 8. In my view, the conclusion drawn by the learned trial Judge that the guilt of the first respondent is not established is certainly a possible conclusion which could have been drawn on the basis of the evidence on record. 9. No case is made out for grant of leave. Application is rejected. It is, however, made clear that the observations made in this order are for limited purposes of considering the prayer for grant of leave. It is also made clear that none of the observations made in this order shall be construed as any - 5 - finding on the rights and liabilities of the parties. JUDGE JUDGE JUDGE