IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4039 OF 2007 Riyaz B. Naik .. Applicant Versus Dr.Sharad Kshirsagar & Anr. .. Respondents Mr.Ganesh Gole for the applicant. Mr.Dilip Bodake for the respondent no.1. Ms.A.T.Jhaveri, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 18th March 2009. : 18th March 2009. : 18th March 2009. P.C.: . Heard the learned advocate for the applicant in support of this application for grant of special leave to prefer an appeal under sub-section 4 of section 378 of the Code of Criminal Procedure, 1973. 2. The applicant filed a complaint against the 1st respondent alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881. The case of the applicant in the complaint is that he was carrying on business of supplying sand. His case is that he had friendly relationship with the 1st respondent. The 1st respondent demanded friendly loan of Rs.01,25,000/- for construction of his house. Relying upon the 1st respondent, the applicant advanced (2) an amount of Rs.01,25,000/- to him. The applicant further stated in the complaint that the 1st respondent purchased sand worth Rs.25,000/- from the applicant for construction of the house. In discharge of the aforesaid liability of Rs.01,50,000/-, the 1st respondent issued a cheque in the sum of Rs.01,50,000/- which was dishonoured. 3. The defence of the 1st respondent is essentially of denial. The 1st respondent is a psychiatrist by profession. He has come out with a defence which relates to one of his woman patient. His case is that the said woman insisted to stay with him and threatened to commit suicide if the 1st respondent refuses to stay with her. Various allegations have been made regarding threats given to the 1st respondent by the brother of the said woman. The allegation is that the applicant is a criminal and he indulged in extortion and the 1st respondent was forced to give cheque in dispute. 4. The learned counsel appearing for the applicant submitted that the 1st respondent has come out with a specific defence which is not established. He submitted that the fact that cheque was issued by the 1st respondent is not disputed and even the fact of (3) dishonour is not disputed. His submission is that as the 1st respondent has failed to establish the specific defence taken, in view of presumption under section 139 of the Negotiable Instruments Act, 1881 and in view of the fact that the presumption is not rebutted, the trial Court ought to have convicted the 1st respondent. 5. I have carefully considered the submissions. Before going to the defence of the 1st respondent it will be necessary to refer to averments made in the complaint as well as in the affidavit in lieu of examination-in-chief. The applicant has stated in his affidavit in lieu of examination-in-chief thus: "I state that in the year 2000 accused came to me and asked for an amount of Rs.1,25,000/- (Rupees One Lakh Twenty Five Thousand Only) as he needed the same for his construction of house and due to our friendly and cordial relations I gave him an amount of Rs.1,25,000/- (Rupees one lakh twenty five thousand only). As I was a sand supplier the accused also needed sand for his construction of own house, so he also took sand from me on credit, the amount ot be paid by (4) him for the sand was Rs.25,000/- (Rupees Twenty Five Thousand Only). I state that thereafter on repeated demands for the amount the accused initially avoided me to repay the amount i.e. total amount of Rs.1,50,000/-. I state that thereafter on repeated demands for the amount the accused on 20/11/2000 gave a cheque of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) duly signed by him bearing cheque No.002225 drawn on the Karad Merchant Sahakari Credit Sanstha Maryadit, Karad Branch-Datta Chowk, Karad in discharge of above liability. ..." 6. Perusal of the cross-examination of the applicant reveals that apart from admissions relating to the number of criminal cases filed or pending against him, the applicant has admitted the following aspects: (i) He was not paying income tax in the year 2000; (ii) He had not obtained any permission or licence (5) from Tahsildar, Karad for running a business of sand; (iii) Without any permit, sand cannot be taken from the concerned place; (iv) In the year 2000 the applicant has obtained loan of Rs.06,70,000/- from a credit society against hypothecation of truck; (v) He has no documentary evidence to show that he had given an amount of Rs.01,25,000/- to the 1st respondent accused; (vi) He had not mentioned the date on which he had given the alleged amount to the 1st respondent; (vii) He has no documentary evidence to show that he had supplied sand worth Rs.25,000/- to the 1st respondent; (viii) He does not have permit to supply sand and he has no written document to establish the alleged credit transaction regarding supply of sand; (6) (ix) The applicant was not knowing the family members of the 1st respondent. 7. It must be noted here that case of the applicant is that he had friendly relations with the 1st respondent and therefore he had advanced Rs.01,25,000/- to the 1st respondent. If the aforesaid admissions are considered, it is obvious that the same were sufficient for rebutting the presumption under section 139 of the said Act of 1881. Therefore, the view taken by the learned trial Judge that the 1st respondent successfully rebutted the presumption under section 139 of the said Act is certainly a possible view. The applicant has adduced no independent evidence to show that the cheque was issued by the applicant in discharge of the liabilities as alleged i.e repayment of personal loan and price of the sand allegedly supplied by the applicant to the 1st respondent. 8. In the circumstances, even assuming that the defence of the 1st respondent is not established, the learned trial Judge was right in holding that the offence is not established. No case is made out for grant of leave. Application is accordingly rejected. (7) (A.S.Oka,J)