rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3733 OF 2008 CRIMINAL APPLICATION NO. 3733 OF 2008 CRIMINAL APPLICATION NO. 3733 OF 2008 IN IN IN CRIMINAL APPEAL NO. OF 2008 CRIMINAL APPEAL NO. OF 2008 CRIMINAL APPEAL NO. OF 2008 Dr.Sunit Ramniklal Shah .. Applicant Vs. State of Maharashtra & Anr. .. Respondents Mr.N.R.Bubna a/w. Mr.A.R.Gole for the Applicant. Mr.Y.S.Shinde,A.P.P.for the State. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. DATED : 5TH JANUARY, 2009 DATED : 5TH JANUARY, 2009 DATED : 5TH JANUARY, 2009 P.C. P.C. P.C. . Heard the learned counsel appearing for the Applicant. 2. This is an application for grant of special leave under Sub Section 4 of section 378 of the Code of Criminal Procedure, 1973. The Applicant is the complainant who filed a complaint against first Respondent alleging commission of an offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as the said Act 1881). ( 2 ) 3. The case of the Applicant is that he had friendly relations with the first Respondent. The first Respondent was in need of money for his business. On the request made by him, the Applicant granted a hand loan of Rs.2,80,000/- to the first Respondent. According to the case of the Applicant, the first Respondent was to repay the amount within a period of two months. According to the case made out in the complaint, the first Respondent paid a sum of Rs.30,000/- and agreed to pay the balance amount of Rs.2,50,000/- within eight to ten days. Subsequently, the first Respondent issued four cheques. The first three cheques were issued in the sum of Rs.50,000/- each and the fourth cheque was issued in the sum of Rs.1,00,000/-. The said cheques were dishonoured and therefore the Applicant filed the complaint. By the impugned order, the learned Magistrate acquitted the first Respondent. 4. The learned counsel appearing for the Applicant submitted that the learned trial Judge was impressed by the fact that the Applicant admitted in ( 3 ) his cross-examination that the loan advanced by him to the first Respondent was not disclosed his income tax returns. He submitted that at highest, the Applicant may be penalised under the Income Tax, 1981. He submitted that the Applicant adduced evidence to show that he has advanced a sum of Rs.2,80,000/- to the first Respondent. He pointed out that the first Respondent did not enter the witness box for rebutting presumption under section 139 of the said Act of 1881. He submitted that the first Respondent had issued cheques for the balance amount of Rs.2,50,000/- and therefore the first Respondent ought to have entered the witness box for the purpose of rebutting the presumption. He submitted that as the first Respondent has not entered the witness box, the presumption has not been rebutted. He further submitted that the learned Judge has committed an error by acquitting the first Respondent. 5. I have considered the submissions. It is well settled position of law that it is not necessary in every case for the accused to enter the witness box for rebutting the presumption created by section 139 ( 4 ) of the said Act 1881. An accused in a complaint under section 138 of the said Act 1881 can always contend on the basis of evidence on record that the presumption stands rebutted. 6. The learned Judge found that during the cross-examination, the Applicant admitted that for evading income tax, he did not show this transaction while filing I.T.Returns. In this context, the learned Judge has observed that it could not be presumed that the accused has given the cheques in question in discharge of any debt or liability. The cheques must be issued towards a legally recoverable debt or liability in order to succeed in a complaint under section 138 of the said Act 1881. The other finding recorded by the learned Judge is that it was not possible to accept that the complainant who is a doctor can lend a huge amount of Rs.2,80,000/- to the accused without entering into an agreement or a document in writing. The learned Judge noted that the Applicant did not disclose the date on which loan was granted by him to the first Respondent. ( 5 ) 7. Considering the aforesaid circumstances, the learned Judge has come to a conclusion that the presumption stands rebutted. Considering the specific admission of the Applicant in the cross examination that he did not show the alleged loan transaction in his income tax return for evading the income tax, the conclusion reached by the learned Judge is certainly a possible conclusion. Even if submission made by the learned counsel for the Applicant is accepted as it is, at highest it can be stated that another conclusion can be possibly drawn on the basis of the same evidence. However, that is not a ground to interfere in an Appeal against acquittal as the view taken by the learned Judge is certainly a possible view. 8. No case is made out for grant of leave. The Application is rejected. (A.S.Oka, J.) (A.S.Oka, J.) (A.S.Oka, J.)