23 APPA-294-2022.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

CRIMINAL APPLICATION (APPA) NO.294 OF 2022

(Vinod Dnyaneshwarrao Kharbade .Vs. Vaishali Raju Patil (Nee Sau.

Vaishali Nitin Burange))

Office Notes, Office Memoranda of Coram,

appearances, Court's orders of directions Court's or Judge's order

and Registrar's orders.

Shri P. A. Kadu, Advocate for Applicant.

Shri K. Rao h/f Shri P. S. Patil, Advocate for the Respondent.

CORAM : AVINASH G.

GHAROTE, J.

D ATE

: 28

th JUNE

, 202

2 .

.

Heard Shri Kadu, learned Counsel for Applicant

and Shri Rao h/f Shri Patil, learned Counsel for the

Respondent.

2.

The contention is that in spite of the admission

regarding issuance of the cheque by the accused, though

a plea was raised in defence, that it was on account of

security, and therefore, the presumption under Section

138 of the Negotiable Instruments Act, 1881, was

attracted, the complaint has been dismissed on the

ground, that the complainant was unable to

demonstrate the availability of sufficient fund so as to

lend the money (Para 29 Page 45). It is submitted

relying upon Kalamani Tex and Another ..Vrs.. P.

Balasubramanian, 2021 (5) SCC 283, (Para 14), that

once the signature on the cheque is admitted, the

presumption stands attracted, and therefore, the burden

shifted upon the accused as a result of which, unless it

was discharged the onus would not shift back upon the

23 APPA-294-2022.odt

complainant, considering which, case for grant of leave

is made out. Accordingly, leave is granted.

3.

Office to register the Appeal.

4.

Issue notice for final disposal at the stage of

admission.

5.

Shri K. Rao, learned Advocate for the Respondent

waives notice on merits.

6.

Shri P. Kadu, learned Advocate for Applicant to

place on record the complaint, the evidence and all

exhibited documents with an advance copy to the

Respondent as the only issue involved is, whether it was

permissible in the aforesaid circumstances for the

learned Magistrate to shift the burden.

7.

List the matter on 13.07.2022 at the end of the

admission board.

JUDGE

TAMBE.

Digitally signed byASHISH

ASHOKRAO TAMBE

Signing Date:28.06.2022

17:14