((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2594 OF 2006 Sanjay Mohanlal Gadiya Applicant versus Smt.Vinaya Ramesh Paigude & ors. Respondents Mr.R.M.Pethe for applicant. Nitin P. Deshpande for respondent no.1. Y.S.Shinde, APP for State. CORAM : A.S.OKA, J. DATE : 18th February 2009 PC : 1. Heard learned counsel for the applicant in support of this application for special leave to prefer an appeal. The applicant is the complainant in a complaint filed under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881"). The complaint has resulted in acquittal. 2. The case of the applicant is that he is carrying on business of builder and contractor. According to him the accused (first respondent) is his customer and he constructed a house for ((-2-)) the accused in the year 2000 and in the same house the accused is now residing. According to the applicant, the accused was a reliable lady and therefore, he gave credit of Rs.2.00 lakhs to the accused and the said amount is yet to be received by the applicant. The accused promised to pay the said amount to the applicant from time to time. When the applicant contacted her in November 2002 she issued a cheque in the sum of Rs.2.00 lakhs dated 1st December 2002. The said cheque has been dishonoured and, therefore, the complaint has been filed. The learned counsel for the applicant has taken me through the notes of evidence and other material documents on record. He pointed out the defence taken by the first respondent- accused in her examination in chief. He pointed out that there was a transaction of sale of immovable property between the father of the applicant and the first respondent. Her defence was that a cheque in the sum of Rs.5,000/- was issued by her to the father of the applicant in connection with the said transaction. Her case is that the said cheque was a blank cheque. Her defence is that she paid cash amount to the father of the applicant and, therefore, she ((-3-)) claimed back the said cheque which was not returned. He submitted that the said case is falsified by the sale deed which is on record. He submitted that the case of the accused that she got the house constructed through another contractor has to be disbelieved going by the version of the contractor which was examined by the accused. He pointed out that the said contractor came out with the case that he completed the construction in 1996-97 and the amount was paid by the accused and her husband in the year 2003. He pointed out that the said contractor is a close relative of the accused. He therefore submitted that as the accused came out with the defences which turned out to be completely false, the presumption under section 139 of the said Act of 1881 does not stand rebutted. He submitted that as the presumption is not rebutted, the order of acquittal passed by the learned Trial Judge is totally perverse. 3. I have carefully considered the submissions. It will be necessary to refer to the affidavit in lieu of examination-in-chief of the applicant. His specific case is that in the year 2000 he constructed the house of the accused and he had given a credit of sum of ((-4-)) Rs.2.00 lakhs to the accused. Thus, according to the him a sum of Rs.2.00 lakhs was payable by the accused to him towards construction of the house. In the cross examination he stated that he was in the construction business since the year 1995. Though he stated that he has documentary evidence to show that he is doing the construction business, he did not produce any documents in the Court. He admitted that he was not having documentary evidence to show that the accused had given him contract of construction. When a suggestion was given to the applicant that the proprietor of Aniket Constructions has constructed the house of the accused, he did not deny the correctness of the said suggestion but merely answered that he is not aware whether the proprietor of Aniket Construction has constructed the house of the accused. In my view, the statements made in the cross examination of the applicant were sufficient to rebut the presumption under section 139 of the Act of 1881. It is well settled law that it is not necessary in every case for the accused to adduce evidence for rebutting the presumption and he can always establish on the basis of available material on record that the presumption stands rebutted. ((-5-)) In the present case, the presumption stood rebutted only on the basis of the aforesaid statements made by the applicant in the cross examination. It is crystal clear from the evidence of the applicant that he has not led any documentary evidence to show that he had constructed the house of the accused and that a sum of Rs.2.00 lakh was payable by the accused to him towards costs of construction. 4. The submission of the learned counsel for the applicant is that as the defence of the accused is falsified by her own evidence, the case of the applicant ought to have been accepted. Once presumption under section 139 of the said Act stands rebutted, it is for the complainant to lead evidence to establish the liability of the accused under the cheque subject matter of the complaint. After rebuttal of the presumption, the accused cannot be convicted only on the ground that he could not establish his own defence. 5. The view taken by the learned Judge that the guilt of the accused is not established is certainly a possible view which could have been taken on the basis of material on record. Even ((-6-)) assuming that another view could have been taken, that is not a ground to interfere in an appeal against acquittal. It cannot be said that the view taken by the learned Judge was an impossible view or the same could not have been taken. The presumption of innocence is further strengthened by order of acquittal. Even assuming that two views are possible to be taken, the one in favour of the accused has to be preferred. 6. Hence, no case is made out for grant of special leave. The application is rejected. It is made clear that the observations made in this order are for the limited purposes for examining the prayer for grant of special leave. None of the observations made herein shall be construed as any finding recorded by this court on the rights and liability of the parties. (A.S.OKA, J.)