1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Criminal Application No. 378 of 2010 IN Criminal Appeal No. of 2010 [Shrikrushna Dattatray Phadke Vs. Ravi Haribhau Zade & another] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. A.N. Ansari, Adv., holding for Mr. H.D. Dangre, Adv., for the Applicant-appellant. ----- CORAM : A.H. JOSHI, J. DATE : 07th July, 2010. 1. This is an application for leave to appeal against the order of dismissal of complaint and acquittal of the respondent no.1- accused. 2. Applicant-complainant is taking exception to the judgment of acquittal on the ground that the accused had to rebut the presumption under Section 138 of the Negotiable Instruments Act. 3. Heard learned Adv. Mr. A.N. Ansari appearing for Mr. H.D. Dangre, Adv., for the applicant. 2 4. In order to appreciate the judgment impugned and challenge, this Court has perused the Examination-in-Chief and cross-examination of the complainant. 5. On perusal of oral testimony of the complainant and the judgment appealed against, it is seen that :- [a] The learned Trial Judge disbelieved the capacity of the complainant to pay a huge amount of Rs.2,00,000-00 in cash by way of a hand loan to the accused. [b] This suspicion arose in the mind of the Trial Court in the light of the admissions contained in the cross- examination of the complainant. [c] The complainant did not prove the occasion to lend, his capacity to lend and also that the complainant could have such a huge amount of Rs. 2,00,000-00 with him in the form of a liquid cash, since the complainant admits that the amount was not withdrawn from the Bank for payment to the accused. 3 6. If collective effect of Examination-in- Chief and cross-examination of the complainant is seen, it is clear that the accused had succeeded in bringing on record such facts from the cross-examination and Examination-in-Chief that the presumption under Section 138 of the Negotiable Instruments Act got shattered. 7. The nature of burden on the accused is not of strict proof, as is required for conviction. 8. The quality of burden of proof required for fetching an acquittal is suggestive in nature, which accused had discharged. 9. In the result, appeal has no merit. 10. Application and appeal are rejected. Judge |Hedau| 4