1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 100 OF 2009 New Millennium Bakers, A partnership firm Registered under the Indian Partnership Act Before the registrar of Firms at Margao Represented herein by Ashish Kejrival, Power of attorney holder for Managing Partner of The Firm vide Power of Attorney Executed before Notary Rajiv Shinkre under registration No. 1234 on 8.5.2004. ... Applicant. V e r s u s 1. Sanjay Arolkar Proprietor of Shree Shantadurga Traders H.No.350, Boa Vista Bardez Goa. 2. The State represented by the Public Prosecutor. ... Respondents. Mr. C. A. Coutinho, Advocate for the Applicant. Mr. A. D. Bhobe, Advocate for the Respondent no.1. Coram :- N. A. BRITTO, J. Date :- 22 nd June, 2009. 2 ORAL ORDER : The complainant seeks leave to appeal under Section 378(4) of the Code of Criminal Procedure, 1973 against the acquittal of the accused under Section 138 of Negotiable Instrument Act, 1981, by judgment dated 28.11.2008. 2. Heard learned Counsel on behalf of both the parties. 3. The case of the complainant was that the accused was a dealer for bread manufactured by the complainant and on 5.10.2004, the accused had given a cheque dated 7.2.2005 of Rs. 1,01479/- towards the supply made to the accused after by 5.10.2004, which cheque when presented for payment was returned by memorandum dated 11.2.2005 with remark that funds were insufficient. The complainant sent a notice dated 9.3.2005 but the said notice was not claimed by the accused and as the said notice was not complied, the complaint was filed by the complainant through its power of attorney. 3 4. In support of the complaint, the complainant examined its managing partner while the accused also gave his evidence and that one Nitesh Kandolkar to prove that the accused could not have given the cheque on 5.10.2004 to the complainant, at their office at Verna, as the tyre of the vehicle of the accused had a puncture on that day at Moira. 5. The complainant appears to have produced some invoices towards the supply of bread but the same have been held as not proved by the complainant by the learned J.M.F.C. and there is no dispute about it. 6. According to the complainant, the accused had acknowledged his liability in the sum of Rs. 93,089.80 as on 5.10.2004, as can be seen from the balance confirmation letter issued by the accused. The accused contested the said balance confirmation letter dated 5.10.2004 stating that it was not signed by him. Even if the said balance confirmation letter is accepted, the fact remains, and it is an admitted position that the complainant had supplied bread for the months of July, August, 4 September, October, November, December, 2004 and up to January, 2005. 7. The learned J.M.F.C., after considering the evidence produced by both parties has come to the conclusion that subject cheque as well as other cheques were taken from the accused by the representative of the complainant and the representative of the complainant used to fill the details of it, and, therefore, the plea of the accused that the cheque involved in the present case had been filled by the complainant had to be believed as the complainant has failed to show that there was supply of bread to the accused in the months of August, 2003 and subsequent amount was due. 8. It is admitted position that the accused had only signed the subject cheque and the contents of the same were filled in by the representative of the complainant. It is not the case of the complainant that Sale Manager who was examined had filled the contents of the same. The accused has stated in his evidence that the accused used to keep a blank cheque book with the complainant and amounts were filled by them as and when they 5 were due by the accused. If it is an admitted that a blank cheque was given to the complainant, I do not see any reason why the story of the accused that the blank cheque book was given to the complainant could not be accepted. Admittedly, the complainant and the accused had a running account. The accused had paid some amount for the supply of bread for the months of November, December,2004 and January, 2005. Even assuming for a moment that the accused had admitted his liability to the extent of Rs. 93,089.80 as on 5.10.2004, admittedly, supply of bread was made thereafter till 31.01.2005 which was partly paid for by the accused. In the other words the accused had paid some amount in cash. So what was the amount due to the complainant by the accused ?. Once it was accepted that the accused had given a blank cheque, it was for the complainant to prove that he had authority to fill the same in the amount shown on the said cheque. As already stated, the complainant has failed to prove by production of invoices that the accused was due and payable to the complainant the said amount of Rs. 1,01,479/-. This is a case where the accused had rebutted the presumption available to the complainant in terms 6 of the relevant provisions of the Negotiable Instrument Act, but the accused had failed to prove that there was liability to be met by the accused to the extent of Rs. 1,01,479/-. 9. In the light of the above, this is not a fit case to grant leave to appeal. Application dismissed. N. A. BRITTO, J. at*