IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.566 OF 2007 Anuj K. Sarna .. Applicant Versus State of Maharashtra & Anr. .. Respondents Ms.Indira P. Mumdar i/by M/s.P.v.Nichani & Co 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 : 27th February 2009. : 27th February 2009. : 27th February 2009. P.C.: . Heard the 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 is the complainant in a complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act). The complaint has resulted in acquittal of the 2nd respondent accused. 2. The learned counsel appearing for the applicant has taken me through the complaint, notes of evidence and other relevant documents on record. She submitted that in fact the loan was advanced to partnership firm (2) M/s.Mod Steel Wires and the 2nd respondent (1st accused) was impleaded in the complaint as an accused as he happened to be a partner of the said firm. She invited my attention to material averments made in the affidavit in lieu of examination-in-chief as well as the complaint. She also invited my attention to the notice of demand issued prior to filing of the complaint. She submitted that there was no reply issued to the said notice. Her submission is that all the material evidence has been completely brushed aside by the learned trial Judge and therefore, there is a gross error committed by the learned trial Judge by acquitting the 2nd respondent. 3. I have given careful consideration to the submissions. Perusal of the complaint and affidavit in lieu of examination in chief of the applicant shows that it is not the case made out by the applicant that loan was advanced by the applicant to M/s.Mod Steel Wires. It is true that the applicant has stated that the 2nd respondent is a partner of the said firm. But the applicant has asserted that a friendly loan was granted to the 2nd respondent and the cheque in dispute was drawn by the 2nd respondent on the account of the said partnership firm. The other cheque was drawn by the 2nd (3) respondent on his own personal account. 4. Therefore, there is no indication, both in the complaint as well as affidavit in lieu of examination in chief that the loan was advanced to the firm and not to the 2nd respondent. Apart from that there are no averments made against the 2nd respondent for holding him vicariously liable under section 141 of the said Act. 5. Apart from this aspect, the learned trial Judge has referred to the evidence of the applicant. In the evidence the applicant admitted that he does not have any business relation with the 2nd respondent and he does not know family and friends of the 2nd respondent. He admitted that the 2nd respondent was not his friend. He stated that a sum of Rs.l lakh was paid by a pay order and a sum of Rs.70,000/- was paid by cash. He stated that the loan is reflected in the book of accounts maintained by him. 6. The learned trial Judge has recorded a finding that the applicant admitted that he used to pay income tax but the income tax returns for the relevant period have not been produced by the applicant on record. The (4) learned Judge observed that there is no documentary evidence placed on record to show that loan was advanced by the applicant to the 2nd respondent. The case made out by the applicant in the complaint is that friendly loan was granted to the 2nd respondent and the cheques were issued in discharge of the liability of the loan. In view of the aforesaid admissions of the applicant in the cross-examination and his failure to produce the income tax return or book of accounts, it was obvious that presumption under section 139 of the said Act stood rebutted. There is no independent evidence adduced by the applicant to establish that the 2nd respondent has issued the cheques in discharge of a legally enforceable debt. The view taken by the learned trial Judge is certainly a possible view. No interference is called for. Application is rejected. (A.S.Oka,J)