IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1603 OF 2006 M/s.P.R.Rao & Sons .. Applicants Versus M/s.Jehovah Jireh Packaging and Insulation & Ors. .. Respondents Mr.Shrishail Sakhare for the applicants. Mr.S.D.Thokade for the respondent nos.1 and 2. 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 : 15th January 2009. : 15th January 2009. : 15th January 2009. P.C.: . Heard advocate appearing for the applicant in support of this application for grant of special leave to prefer appeal under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. The applicants filed a complaint under section 138 of the Negotiable Instruments Act, 1881. The allegation in the complaint is that as per the orders placed by the respondents accused from time to time, the applicants supplied certain material to the respondents-accused and as on 11th February 2004, there was a debit balance of Rs.01,74,322.81/- shown in the account of the accused maintained by the applicants. The three cheques were issued on 11th February 2004 in the amounts of Rs.82,161.41/-, Rs.22,161.40/- and Rs.70,000/- respectively by the accused in favour of the applicant. The said cheques were dishonoured. After issuing (2) statutory notice, complaint was filed. After a complete trial the learned Magistrate has acquitted the respondents. 2. The learned counsel appearing for the applicants invited my attention to the findings recorded in paragraph 2 and 3 of the impugned order. He pointed out that even according to the defence witness a cheque dated 27th August 2002 in the sum of Rs.54,857.27/- was issued for getting a demand draft in the name of some other supplier. He pointed out that the said payment cannot be considered as having been made in discharge of the liability of the accused to the applicant. He pointed out that the defence evidence which is considered in paragraph 2 of the impugned order is not sufficient to rebut the presumption under section 139 of the said Act of 1881. 3. I have carefully considered the submissions. The finding of the learned trial Judge is that a cheque dated 27th August 2002 was issued by the accused in the sum of RS.54,857.27/- in favour of the applicants and the said cheque has been cleared. Apart from the said amount, the learned Judge found that amounts of Rs.32,332.36/- and Rs.11,487.15/- were paid to the applicants on 13th September 2002 towards sales. The learned Judge also found that a sum of Rs.46,692.63/- (3) was credited to the account of the applicants on 16th September 2002. The learned Judge has referred to cheque dated 23rd October 2002 issued by the accused in the sum of Rs.41,040.45/- and he has observed that the said cheque was credited. The learned Judge on the basis of defence evidence found that the four invoices on which the claim of the applicants was based did not remain unpaid and the amounts were paid by the accused in the year 2002. 4. The evidence adduced by the accused established that certain amounts were paid by them to the applicants. This evidence was sufficient to rebut the presumption under section 139 of the said Act of 1881. Therefore, the burden shifted on the applicants to prove that sum of Rs.01,74,322.81/- was due and payable as on 11th February 2004. The said burden has not been discharged. 5. Considering the findings recorded by the learned Judge, the view taken by the learned Magistrate certainly appears to be a possible view which could have been taken on the basis of material on record. No case is made out for grant of leave. Application is rejected. (A.S.Oka,J)