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. 4150 OF 2006 CRIMINAL APPLICATION NO. 4150 OF 2006 CRIMINAL APPLICATION NO. 4150 OF 2006 IN IN IN CRIMINAL APPEAL NO. ---- OF 2006 CRIMINAL APPEAL NO. ---- OF 2006 CRIMINAL APPEAL NO. ---- OF 2006 Mr.Navin Kantilal Thakkar ...Applicant (Orig.Complainant) vs. Mr.Wadilal Laxmichand Doshi & Anr. ...Respondents Mr.P.P. Hudlikar i/b. Ms.Shilpa G. Joshi for the Applicant. Mr.S.V. Kotwal i/b. M.S. Mohite for Respondent No.1. Mrs.M.H. Mhatre, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : DECEMBER 4, 2008 DATED : DECEMBER 4, 2008 DATED : DECEMBER 4, 2008 P.C. :- P.C. :- P.C. :- 1. Heard Counsel for the applicant and Counsel for the respondent. 2. The applicant who is the original complainant is challenging the judgment and order passed by the trial court whereby the complaint filed by the applicant herein under Section 138 of the Negotiable Instruments Act was dismissed and the respondent-accused was acquitted for the offence for which he was charged. - 2 - 3. Counsel for the applicant submitted that the learned Magistrate had erred in holding that the applicant had no sufficient means to lend amount of Rs.4,57,500/- when it was admitted by the respondent that he used to borrow money from the applicant as and when required. He submitted that the trial court had erred in holding that the complainant had failed to prove that the accused had issued the cheque, in question, to the applicant herein. 4. I have perused the judgment and order of the trial court. The trial court has given cogent reasons for coming to the conclusion that the complainant had not established that the cheque, in question, was given for discharge of the legally enforceable debt or liability. 5. It is a well settled position in law that though presumption is raised under Section 139 of the Negotiable Instruments Act and the initial burden is on the accused to establish that the cheque was not given for legally enforceable debt or liability, the said - 3 - burden is rebuttable and therefore, the burden here shifts on the complainant to establish that the said cheque was given for a legally enforceable debt or liability. The trial court, therefore, was justified in recording the said finding after noticing that the complainant did not have means to give loan of Rs.4,57,500/-. No case, therefore, is made out by the applicant for interfering with the judgment and order passed by the trial court. In my view, there is no illegality or infirmity in the order passed by the trial court. 6. Hence, leave is refused. Appeal does not survive. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)