IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2908 OF 2008 Mr.Uday Bhalchandra Pethe .. Applicant Versus Hari Ramchandra Thakur & Anr. .. Respondent Mr.K.S.Dewal for the applicant. Mr.J.P.Yagnik, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 13th March 2009. : 13th March 2009. : 13th March 2009. P.C.: . Heard learned advocate appearing for the applicant in support of this application under sub-section 4 of section 378 of the Code of Criminal Procedure, 1973. The applicant filed a complaint against the 1st respondent alleging commission of an offence under section 138 of the Negotiable Instruments Act, 1881. By the impugned order, the learned Magistrate has acquitted the 1st respondent. The learned Judge has given various ground for acquitting the 1st respondent. The learned trial Judge considered various decisions of this Court and observed that the cheque was not issued towards legally enforceable debt. (2) The learned Judge referred to the case made out by the applicant that the amount covered by the cheque was due and payable by the wife of the 1st respondent. 2. The learned counsel appearing for the applicant submitted that the 1st respondent had stood as a guarantor to his wife and in his capacity as the guarantor, he had issued the cheque in dispute. He relied upon the decision of the Apex Court in the case of ICDS Ltd Vs. Beena Shabeer & Anr. [(2002) 6 Supreme Court Cases 426]. He, therefore, submitted that the learned Judge has committed an error. 3. I have carefully considered the submissions. In the case of ICDS Ltd (supra) the Apex Court was dealing with a case where a guarantor issued a cheque towards payment of the dues outstanding against principal debtor and the said cheque was dishonoured. In the present case, in the complaint, the applicant has stated that the 1st respondent opened an account with the applicant in the name of his wife. The business of the applicant is of sale of pesticides. It is alleged that though the account was maintained by the applicant in the name of the wife of the 1st respondent, the business was carried on by the 1st respondent. According to the applicant a (3) sum of Rs.02,89,780/- was due and payable at the foot of the said account and the cheque was issued in discharge of the said liability. The same is the case made out in the affidavit in lieu of examination in chief. In the cross-examination, the authorised representative of the applicant admitted that the account of the transaction is maintained in the name of the wife of the 1st respondent. He stated that he was unable to recollect whether any writing was executed by the 1st respondent accepting the liability of his wife. He admitted that the applicant has not produced any such document. He also admitted that the applicant has not produced any document to show that certain goods were sold to the wife of the 1st respondent on credit. He stated that he was unable to recollect as to whether the wife of the 1st respondent had executed a power of attorney in favour of the 1st respondent. Thus, the complainant has not made out a case that the 1st respondent had agreed to act as a guarantor. Apart from the applicant one more witness by the name Sundip Mandavkar was examined by the applicant. Even the said witness has not made out a case that the 1st respondent had agreed to act as a guarantor. 4. The only case made out in this Court is that the (4) 1st respondent had guaranteed repayment of the amount by his wife. That is not the plea of the applicant either in his complaint or in his affidavit in lieu of examination in chief. Therefore, the aforesaid decision in the case of ICDC Ltd (supra) has no application. 5. In the circumstances, the view taken by the learned Judge is certainly a possible view. No case is made out for grant of leave. Application for leave is rejected. It is made clear that the observations made in this order are only for limited purpose of examining the prayer for grant of special leave. None of the observations made herein shall be construed as any finding or adjudication made by this Court as regards rights and liabilities of the parties. (A.S.Oka,J)