1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Application No.1407 of 2007 IN Criminal Appeal No. of 2007 Shri Mahesh Ranidan Birla .. Applicant/Appellant (Orig.Complainant) V/s. M/s.Sampatlal Rajmal Chordiya & ors. .. Respondents (Orig. Accused) Mr.Jagdish Choudhari for Applicant/Appellant. Mr.Nitin Jamdar for Res.No.1. Mr.S.R. Shinde, APP for State. ----- CORAM : SMT.ROSHAN DALVI, JJ. Dated : 7th December, 2009 P.C. : 1.This is an Application for leave to file an Appeal. The Respondents (original accused), in this case, have been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act. The Applicant/complainant has filed a criminal complaint upon the dishonoured cheque for Rs.2 Lakhs dated 1.7.2003 issued by Respondent No.1 on behalf of his Firm in favour of the Applicant. The defence of Respondent No.1 is that he had issued the cheque signed and dated 2002 . The Applicant inserted the year 2003 in place of 2002 and misused the cheque. Once the cheque is admittedly issued, a statutory 2 presumption under Section 139 of the Negotiable Instruments Act has to be made. Hence the accused must rebut the presumption. It is the case on behalf of Respondent No.1 shown to the Court through the copy of the cross-examination of the Applicant that there were transactions between the Applicant and Respondent No.1. A statement of Respondent No.1 under Section 313 of the Criminal Procedure Code shows that he sent a product to the Applicant which was defective. The last of such transaction was in 2002. This, prima facie, does not rebut the presumption. 2.The judgment of the learned Magistrate has accepted the Respondents explanation for rebutting the presumption and has required the Applicant to prove the legally enforceable debt. The impugned judgment has proceeded on the footing that the Applicant has not shown the amount under the cheque in his income-tax returns. This aspect requires reconsideration. Hence leave to appeal is granted. 3.Call for R & P. Respondents waive service. 4.The Advocates of the Applicant as well as Respondent No.1 have produced before me copies of all the necessary papers, including the dishonour of cheque, the statutory notice, reply to the statutory notice, 3 the cross-examination of the complainant and the statement of the accused under Section 313 of the Criminal Procedure Code. 5.The Advocates are heard extensively. 6.Place the Appeal on Board for hearing upon the receipt of the R & P, on 22 nd January, 2010. (SMT.ROSHAN DALVI, J.)