DINESH SHRIRAM MATE Vs. RAJU MADHUKAR DHOLE

JUDGEMENT

(1.) HEARD Mr. Purohit, learned counsel for the applicant.

(2.) BY this application under Section 378(4) of the Code of Criminal Procedure seeks special leave to appeal against judgment and order of acquittal dated 5/10/2006 passed by the Judicial Magistrate First Class, Nagpur in Criminal Complaint Case No.1213/2002 wherein the applicant filed the above case against the respondent alleging offence punishable under Section 138 of Negotiable Instruments Act. The case of the applicant is that he had given hand loan of Rs. 1,50,000/- to the respondent-accused who was his friend. The accused issued cheque for an amount of Rs. 1,50,000/- towards repayment of the loan which was dishonoured. The defence of the accused was that he had taken loan from one Rajesh Baisware and he had given a blank cheque to Rajesh which has been misused by the applicant.

(3.) CONSIDERING all the circumstances, learned Magistrate acquitted the respondent of the offence charged. Mr. Purohit, learned counsel appearing for the applicant-complainant submitted that the accused has not discharged the burden cast upon him under Section 139 of the Negotiable Instruments Act to prove that there were no valid consideration for issuance of the cheque. He further submitted that the finding of the Magistrate that Rajesh Baisware ought to have examined by the complainant is totally perverse since it was the defence of the accused that he had given a blank cheque to Rajesh Baisware it is the accused who should have examined Rajesh. Having considered the submissions made by learned counsel for the applicant and having perused the records, I find no ground to interfere with the impugned judgment and order of acquittal. Although there is presumption of consideration in respect of cheque issued by a person, in my opinion, considering the evidence led in the matter by the complainant this presumption has been rebutted by the accused.