IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No.1626 OF 2008 ------------------------------------------------------------- Office Notes,Office : Memoranda of Coram, : Court’s or Judge’s orders appearances,Court ’s : orders or directions : and Registrar’s orders. : ------------------------------------------------------------ Mr Subhash Jha i/b M/s Bharat Vaishnav & Co. for the Applicant. Mr S.D. Patil for Respondent No.1. Ms. M. H. Mhatre, A.P.P.for the State. CORAM: CORAM: CORAM: A.R. JOSHI,J. A.R. JOSHI,J. A.R. JOSHI,J. DATED : 28TH APRIL,2009. DATED : 28TH APRIL,2009. DATED : 28TH APRIL,2009. P.C.:- P.C.:- P.C.:- 1. Heard rival submissions for some time. It is the application for leave to prefer appeal against the acquittal of respondent-original accused in the matter of offence under Section 138 of the Negotiable Instruments Act, 1881. Allegedly, according to the case of the complainant, the appellant, he had advanced loan of Rs. 5 lacs and in repayment of the same he received the cheque for the said amount. The said cheque was dishonoured when presented to his banker. Demand notice was issued. However, there was no reply and no payment. Hence, the complainant has lodged a criminal complaint. It appears that the learned Trial Magistrate was influenced by the defence of the accused that being a wealthy person, the accused had no need to get any loan much less Rs. 5 lacs from the complainant who is salaried person. It also appears that the Trial Magistrate was influenced by case of the accused that he was investor in the buildings which were under construction by different builders and the complainant was a purchaser of one of the flats in such building and he was directed by the builder to approach the accused and to pay the amount to the accused as he had already invested his funds in the said flat. When, allegedly, such amount was given to the accused he handed it over to the builder. However, in order to secure the payment of Rs. 5 lacs given by the complainant, accused gave a cheque by way of security. It appears that the Trial Magistrate has accepted his defence and ignored the aspect as to the prima facie presumption envisaged by Section 118 of the N.I.Act. All the same, in the opinion of this Court, there is triable issue in the present matter. 2. In the result, leave to appeal is granted. Appeal is admitted. (A.R.JOSHI,J.) (A.R.JOSHI,J.) (A.R.JOSHI,J.)