IN THE HIGH COURT OF JUDICATURE AT PATNA SLA No.92 of 2010 M/S AYUSH ENTERPRISESTHRU.PROP.MR.PURUSHOTTAM KUMAR Son of late Ram Nandan Prasad, resident of Near Motilal Mohalla Sheikhpur P.S. Shastrinagar, Patna … … Petitioner Versus 1. STATE OF BIHAR 2. M/s Tornado Sahil Textile, having its registered office at Shiv Apartments, Flat No. 106, Opposite Gaytri Mandir, Lohiya Nagar, P.S.Kankarbag, Patna 3. Mrs. Priti Kumari, wife of Manoj Kumar, Director, M/s Torando Sahil Textile, having its registered office at Shiv Apartments, Flat No. 106, opposite Gaytri Mandir, Lohiya Nagar, P.S. Kankarbagh, Patna … … respondents. For the petitioner: Shri Ritesh Kumar Singh,Adv. For the State: Shri Ajay Mishra, A.P.P. For respondent nos 2 &.3: Shri Sanjay Kumar Singh ----------- 8. 11.5.2011 Heard counsel for the parties. This application has been filed for seeking leave to appeal against the judgment of acquittal in respect of respondent no.3 Smt. Priti Kumar who was put on trial along with the convicted accused Manoj Kumar for committing offence under Section 138 of the Negotiable Instruments Act. It appears that there is a Company named and styled as M/s Tornado Sahil Textile which had put in an advertisement in some print media inviting applications for appointment of Super Stockiest in the States of Bihar and Jharkhand. Accordingly, the complainant applied and an agreement was finalized between the company and the same was signed by the complainant and convicted accused Manoj Kumar. A cheque was issued by the complainant and that was encashed also but no appointment or any document in that behalf was 2 issued and no supply of textiles was ever made by the company and other accused persons to the complainant. It is further alleged that when the matter was agitated with the company a cheque bearing no. 478418 dated 11.4.2007 drawn on ICICI Bank in favour of the complainant was issued under the signature of convicted accused Manoj Kumar which was sent for encashment through collection and it was returned with remarks “insufficient fund” on 16.4.2007. Legal notice was sent but there was no reply and, ultimately, after observing other legal formalities, the complaint petition was filed on which the two accused, namely, Manoj Kumar and Priti Kumari were summoned and they were put on trial. While delivering the judgment Smt. Rachna Shrivastava, Judicial Magistrate, Ist Class, Patna, on 5.10.2010 in Complaint Case No. 1766( C) of 2007 held that evidence was unsatisfactory and deficient as regards the complicity of accused respondent no. 3 Smt. Priti Kumari. Besides, it was held that the cheque was not issued by her and it was signed by convicted accused Manoj Kumar only and she went on to acquit respondent Priti Kumari. It was submitted by citing a decision of the Supreme Court reported in (2000)1 SCC 1 Anil Hoda Vs. Indian Acrylic Ltd. that there is a legal presumption that the company was obliged to make payment of certain liabilities and if no rebuttal evidence is there then the court has to draw an inference 3 of the charge being proved. Another decision of the Supreme Court which is reported in (2001)6 SCC 16 Hiten P.Dalal Vs. Bratrindra Nath Banerjee was also placed in support of the above contention. On perusal of the decisions cited before me what appears is that no presumption could be drawn merely on allegation coming against the accused but the presumption could be drawn when evidence in that behalf is duly adduced in court and that raises a presumption which requires to be rebutted. Rebuttal could be done by the accused either by leading evidence or by any other mode which could be recognized under the provisions of Indian Evidence Act. Thus, what appears from the decisions cited is that the presumptions are never conclusive and they could only be raised on evidence and on that very basis of presumption no conviction could be sustained in absence of evidence. On perusal of the judgment, what I find is that the learned Magistrate dealt with the evidence of P.W. 1, the complainant in paragraph 4 of her judgment and while so doing she has placed reliance on certain admitted facts coming in his cross examination indicting that respondent no.3 Priti Kumari was not a party to the agreement which was written between the parties. It was further admitted that there was no evidence or document showing that she was one of the Directors of the Company with convicted accused Manoj Kumar. If this could be 4 the evidence, then there could not be any question to grant special leave for appealing against the order of acquittal. This Special Leave to Appeal is dismissed. Kanth ( Dharnidhar Jha, J.)