1 A IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1633 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 Milap Parasmal Mehta .. Applicant V/s. M/s.Baba Textile Processors Pvt.Ltd.& Ors. .. Respondents Mr.D.S.Sawant, Senior Advocate a/w. Mr.Rajesh B.Parab for the applicant. Mr.Subodh Desai for Respondent Nos. 1 and 2. Ms.M.H.Mhatre, A.P.P.for the State. CORAM : A.R.JOSHI, J. DATED : 8th JULY, 2009. P.C. Heard rival submissions for some time. 2. It is the application for leave to file an appeal against the acquittal of Respondents in the matter of offence punishable under section 138 of Negotiable Instruments Act. 2 3. Perused the documents annexed to the application and also perused the notes of evidence. It is significant to note that one of the partner of the complainant firm has been examined as a defence witness by the accused and apparently he had supported the case of the accused as to termination of earlier executed agreement between complainant and the accused. Said agreement was for running the business/factory premises of the complainant for certain monitory consideration and out of which reportedly Rs.10 lakhs were to be given on the date of such agreement. According to the complainant out of such amount, amount of Rs.5 lakhs was given by cheque and it was dishonoured. 4. It appears that one of the partners of complainant was examined on behalf of the accused as mentioned above and he stated that on the date of such MOU he had received cash amount of Rs.5 lakhs, receipt to that effect without any revenue stamp, was produced before the Trial Magistrate. Apart from such receipt a sort of letter on the letter head of complainant partnership firm was also produced by the said witness, examined on behalf of the accused. It was the submission on behalf of the accused that by said letter earlier agreement/MOU came to an end and as such there is no legally enforceable liability for the cheque of Rs.5 lakhs. 5. It appears that trial Magistrate was influenced by such answers and the evidence laid before it by way of examination of one of 3 the partners of the complainant. Admittedly, letter allegedly putting to end of the MOU was not signed by the complainant on behalf of the partnership firm. 6. Considering the above circumstances and considering even the answers given by said defence witness, in the opinion of this Court, there is a triable issue in the appeal in order to ascertain the correctness and legality of the order passed by the trial Magistrate acquitting the Respondent accused. Hence, present leave petition is allowed. 7. Appeal is admitted. 8. Call for R & P. 9. With these directions, leave petition is disposed of. (A.R. JOSHI, J.)