1 cra53.09 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 53 OF 2009 Rangrao Mersing Jadhav ..APPLICANT -VERSUS- Vijay Prasadrao Kharale and another ..RESPONDENTS ..... Mr. M.V. Deshpande, advocate for the applicant. Mr. K.J. Ghute-Patil, APP for respondent-State. ..... (CORAM : T.V. NALAWADE, J) DATED : 29th August, 2011. PER COURT : 1. The Revision is filed to challenge the order made by the Additional Sessions Judge, Nanded in Criminal Revision No. 167/2007. By the order dated 11.11.2008, the Sessions Court has set aside the order of issue process made by the learned Judicial Magistrate, First Class, Kinwant in R.C.C. No. 265/2005. The private complaint was filed by the present applicant for the offence punishable under Section 467 and 468 of the Indian Penal Code. After making investigation under Section 202 of the Criminal Procedure Code, the order of issue process was made by the J.M.F.C. 2 cra53.09 2. The advocate for the applicant is heard. No body turned up for the respondent-accused. The copies of the relevant documents are produced. The case of the applicant is that the cheque of the applicant, which was missing, was misused by the accused and in that regard he had given complaint to the Police and he had given intimation to the Bank. A copy of the notice given by the accused for lodging the complaint under Section 138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as "the N.I. Act") is produced and a copy of the reply given by the applicant to the notice is also produced. There is copy of cheque. The date of the cheque is 12.02.2004. It is the case of the applicant that he had approached the Bank on 05.02.2004 and he had approached the Police on 05.02.2004. In reply, the date is given as 15.02.2004 but a copy of the complaint given to the Police is produced. Though, it is true that in the complaint filed under Section 138 of the N.I. Act, the respondent-accused has mentioned the date of cheque as 12.02.2004 and the same date has been mentioned in the statutory notice issued by the respondent, on the basis of this record, the J.M.F.C. took cognizance of the offence under Section 138 of the N.I. Act. The complaint under Section 138 of N.I. Act was filed on 02.04.2004 and the cognizance came to be taken on 18.12.2007. On the other hand, the cognizance for the offence in 3 cra53.09 the complaint filed by the present applicant came to be taken on 28.10.2007. 3. It appears that though the complaint under Section 138 of the N.I. Act was filed first in time, the cognizance of the offence in the complaint filed by the present applicant came to be taken earlier in time. However, due to giving of statutory notice by the complainant for lodging the complaint under Section 138 of the N.I. Act, it can be said that it was within the knowledge of the present applicant that there would be such case against him. There is presumption available under Section 118 and 139 of the N.I. Act in favour of holder of cheque. In view of the circumstances, the defence taken by the applicant can be considered in the private complaint filed against him for the offence under Section 138 of the N.I. Act. The burden is on the present applicant to prove the forgery. It appears that the present applicant has admitted the signature on the cheque and he is denying only other contents of the cheque. Law is settled on this point also. If the present applicant is able to prove the forgery in complaint filed against him under Section 138 of the N.I.Act, the things will be more serious for the present respondent. 4. In view of this circumstances, this Court holds that it is 4 cra53.09 desirable that the defence of the present applicant is considered in the case filed under Section 138 of the N.I. Act. So this Court holds that it would not be proper to interfere in the decision given by the Sessions Court and the Revision stands dismissed. (T. V. NALAWADE) JUDGE ga s/cra53.09