((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1620 OF 2008 Jayashree Jayprakash Shah Applicant versus Smt.Rukhmini Dwarkanath Kale and others Respondents Jayant Gaikwad for the applicant. Y.R.Dube for respondent no.1. P.A.Pol, APP for State. CORAM : A.S.OKA, J. DATE : 11th February 2009 PC : 1. Submissions of the learned counsel for the parties were heard yesterday. This is an application for grant of special leave under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. The applicant is the original complainant who filed a complaint alleging commission of an offence under section 138 of the Negotiable Instruments Act, 1881. The decision of the complaint has resulted in acquittal. 2. It will be necessary to refer to the assertions made by the applicant in the ((-2-)) complaint filed under the said Act of 1881 and the statements made in affidavit in lieu of evidence. It is stated by the applicant that the first accused was carrying on business as the sole proprietor of the firm in the name and style as M/s.Adarsh Footware and the first respondent-accused is the family friend of the applicant. The second accused (first respondent) is stated to be the sister of the first respondent and a guarantor. 3. The case of the applicant is that the first accused made a request for grant of a friendly loan and accordingly from time to time, a sum of Rs.7.00 lakhs was paid by the applicant to the first accused. It is stated that subsequently further amount of Rs.1.00 lakh was advanced by the applicant to the first accused. A reference has been made to certain payments made by the first accused. The first accused had issued a cheque in discharge of his alleged liability. The said cheque was dishonoured and thereafter the notice was served by the applicant to the first accused. It is stated that the second accused approached the complainant with a request not to take action against first respondent and she handed over a ((-3-)) cheque in the sum of Rs.8,28,294/- drawn in favour of the applicant. The said cheque has been dishonoured and the present complaint has been filed on the ground of the dishonour of the cheque issued by the 2nd accused. The finding recorded by the learned Trial Judge is that the applicant has failed to prove that the cheque was issued by the second accused in discharge of the liability of loan borrowed by the first accused. In this application the 2nd accused has been impleaded as the 1st respondent. 4. The learned counsel appearing for the applicant has taken me through the documents on record and the impugned judgement. He submitted that the impugned judgement is perverse inasmuch as the first respondent had issued the cheque in discharge of legal liability. He invited my attention to the material evidence on record including the depositions of the witnesses and submitted that in view of the admissions of the 1st respondent the liability of the 1st respondent was clearly established. 5. The question is whether the cheque issued ((-4-)) by the second accused (first respondent) was in discharge of the legal liability. The case of the complainant is that the first respondent (second accused) had undertaken the liability of the first accused to pay the amount. The second accused (1st respondent) filed her affidavit in lieu of examination in chief in which her case is of complete denial. It will be necessary to refer to her cross examination in which she has stated thus: "I reside with the family of my brother-in-law. I have my account with Maharashtra Bank, Ghatkopar Branch. My brother-in-law Ganesh Kale operate my bank account. I was using cheque. I used to sign cheques. My brother-in-law Ganesh Kale was keeping with him my cheque book. He used to keep my blank signed cheque. It is true that I had always the idea that the brother-in-law used my cheque when he was obtaining my signature. After receiving Court summons I got knowledge about the use of this cheque since I had no transaction with the complainant and therefore, his notice was not required. The cheque Ex.43 bears my signature. It is not true that I made false statement in my affidavit and am deposing false today. It is not true that the cheque in question was issued by me ... ..." 6. It must be noted here that an affidavit in lieu of examination-in-chief was filed by the first accused. In his examination in chief, he has stated thus : ((-5-)) "... ... I say that at the time of taking the loan the complainant had asked me to give the blank signed cheque of some of his relative as security, however as I was in need of money, therefore I took the blank signed cheque of my relative Mrs.RUKMINI D. KALE (the accused) without her consent and knowledge and the same was handed over to the complainant. 3) I say that I did not know that the complainant will misused the said cheque of Mrs.RUKMINI KALE, however I further say that the present accused Mrs.RUKMINI KALE was no way concerned to the transaction between myself and complainant. The RUKMINI KALE never visited the home of complainant... .." 7. In the light of this evidence, the finding recorded by the learned Trial Judge is that there was no direct evidence adduced on record to show that the first respondent (second accused) had stood as a guarantor for the repayment of loan by the first accused. In the circumstances, the learned Judge has recorded a finding that the applicant has failed to prove the guilt of the first respondent beyond a reasonable doubt. In view of the evidence on record and especially the specific case made out by the applicant that the liability was of the 1st accused, it was obvious that the presumption under section 139 of the said Act of 1881 stood rebutted and, therefore, it was necessary for the applicant to lead evidence to ((-6-)) establish that the first respondent (second accused) had stood as a guarantor. 8. The view taken by the learned Judge is a possible view. No interference is called for. The application is rejected. 9. It is made clear that the observations made in this order are for the limited purposes for examining the prayer for grant of leave and no observation made herein shall be construed as a finding on the rights and liabilities of the parties. (A.S.OKA, J.)