(1) (4) Appln 3534/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Amk CRIMINAL APPLICATION NO. 3534 OF 2010 Subhda Ajit Mutha .. Applicant Vs. Rani Bhimrao Gupte & Anr. .. Respondents Mr. Indrajit Kulkarni i/b Mr. Subhash Jadhav for the Applicant. Mr. S. B. Deshmukh for Respondent No.1. Mrs. M. M. Deshmukh for the Respondent State. CORAM : MRS. ROSHAN DALVI, J. Date : 29th April, 2011. P.C. 1. This is an application for leave to file an Appeal against the order of acquittal in a criminal prosecution under Section 138 of the Negotiable Instruments Act. 2. The Applicant/Complainant claims to have given a loan for medical treatment of the accused for which the accused issued two cheques on 9th June and 29th June, 2005. The cheques came to be dishonoured. 3. The defence of the accused is that the cheques were misused. There was admittedly an earlier transaction between the parties. That was of Rs.40,000/- under which the Accused/Respondent had issued one cheque on 14th June, 2004. Upon the case of the accused that a blank cheque was given by way of security which has been misused, the accused has got examined a bank officer of (2) (4) Appln 3534/10 his bank showing the issue of cheque books to the accused for operating his account. There were two cheques used from the cheque book issued on 16.12.2003 which was used by the Complainant. One was the dishonoured cheque. The cheque for the previous transaction was given from the cheque book issued much later on 14.06.2004. This goes to show that two cheques which came to be dishonoured were actually issued earlier than the first transaction by way of security. The amount of earlier loan was repaid through another cheque. Hence the remaining cheque which is now claimed to be dishonoured is the cheque earlier given by way of security which is later misused. 4. The accused must rebut the statutory presumption. The accused has examined the bank officer to do so. It is argued that the accused must himself step into the witness box and not rebut the presumption through another witness. That is an absurd contention. Only the relevant witness who is competent to depose about the particular fact can depose. Proof of documents by another author cannot be made by the accused himself. 5. The accused has discharged the onus of rebutting the presumption. The impugned order, therefore, cannot be faulted. Leave to Appeal is refused. (ROSHAN DALVI , J.)