IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.4039 OF 2007

Riyaz B. Naik

.. Applicant

Versus

Dr.Sharad Kshirsagar & Anr.

.. Respondents

Mr.Ganesh Gole for the applicant.

Mr.Dilip Bodake for the respondent no.1.

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 : 18th March 2009.

: 18th March 2009.

: 18th March 2009.

P.C.:

.

Heard the learned advocate for the applicant in

support of this application for grant of special leave

to prefer an appeal under sub-section 4 of section 378

of the Code of Criminal Procedure, 1973.

2.

The applicant filed a complaint against the 1st

respondent alleging commission of offence under section

138 of the Negotiable Instruments Act, 1881. The case

of the applicant in the complaint is that he was

carrying on business of supplying sand. His case is

that he had friendly relationship with the 1st

respondent. The 1st respondent demanded friendly loan

of Rs.01,25,000/- for construction of his house.

Relying upon the 1st respondent, the applicant advanced

(2)

an amount of Rs.01,25,000/- to him. The applicant

further stated in the complaint that the 1st respondent

purchased sand worth Rs.25,000/- from the applicant for

construction of the house. In discharge of the

aforesaid liability of Rs.01,50,000/-, the 1st

respondent issued a cheque in the sum of Rs.01,50,000/-

which was dishonoured.

3.

The defence of the 1st respondent is essentially

of denial. The 1st respondent is a psychiatrist by

profession. He has come out with a defence which

relates to one of his woman patient. His case is that

the said woman insisted to stay with him and threatened

to commit suicide if the 1st respondent refuses to stay

with her. Various allegations have been made regarding

threats given to the 1st respondent by the brother of

the said woman. The allegation is that the applicant is

a criminal and he indulged in extortion and the 1st

respondent was forced to give cheque in dispute.

4.

The learned counsel appearing for the applicant

submitted that the 1st respondent has come out with a

specific defence which is not established. He submitted

that the fact that cheque was issued by the 1st

respondent is not disputed and even the fact of

(3)

dishonour is not disputed. His submission is that as

the 1st respondent has failed to establish the specific

defence taken, in view of presumption under section 139

of the Negotiable Instruments Act, 1881 and in view of

the fact that the presumption is not rebutted, the trial

Court ought to have convicted the 1st respondent.

5.

I have carefully considered the submissions.

Before going to the defence of the 1st respondent it

will be necessary to refer to averments made in the

complaint as well as in the affidavit in lieu of

examination-in-chief. The applicant has stated in his

affidavit in lieu of examination-in-chief thus:

"I state that in the year 2000 accused came to

me and asked for an amount of Rs.1,25,000/-

(Rupees One Lakh Twenty Five Thousand Only) as

he needed the same for his construction of house

and due to our friendly and cordial relations I

gave him an amount of Rs.1,25,000/- (Rupees one

lakh twenty five thousand only). As I was a

sand supplier the accused also needed sand for

his construction of own house, so he also took

sand from me on credit, the amount ot be paid by

(4)

him for the sand was Rs.25,000/- (Rupees Twenty

Five Thousand Only).

I state that thereafter on repeated demands for

the amount the accused initially avoided me to

repay the amount i.e. total amount of

Rs.1,50,000/-.

I s