((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1153 OF 2007 Sau.Shaila Arun Mehta Applicant versus Omprakash Zumbarlal Tapadiya Respondent Suresl S. Shah for applicant. Sanjay D. Thokade for respondent no.1. J.P.Yagnik, APP for State. CORAM : A.S.OKA, J. DATE : 11th February 2009 PC : 1. Heard learned advocate for the applicant and learned advocate for the first respondent. The applicant is the complainant in a complaint alleging commission of an offence under section 138 of the Negotiable Instruments Act, 1881. The complaint has resulted in acquittal. The case made out by the applicant in the complaint is that her husband and first respondent were the partners of a partnership firm namely M/s.Shrikrishna Textiles at the relevant time. The amount was borrowed for the purposes of business of the firm. Reliance has been placed on a letter issued by the partners of the said ((-2-)) firm which is at Exhibit-31. A specific case made out by the applicant is that though she had advanced the said amount for the business of the partnership firm, the first respondent agreed to discharge the liability of partnership by issuing the cheque. 2. The order of acquittal has been passed by the learned Trial Judge on various grounds. One of the grounds given by the learned Judge is that the applicant has not chosen to prosecute her husband who is a partner of the said firm alongwith the first respondent. 3. After having heard learned counsel for the parties, I find that the view taken by the learned Judge that the guilt of the first respondent is not established is a possible view. Reliance is placed by the applicant on letter at Exhibit-31. The said letter is signed by the first respondent as a partner of M/s.Shrikrishna Textiles. The said letter is on the letter head of the firm in which it is stated that the partners of the said firm request the applicant to deposit the amount with the firm as the firm was in need of finance. Interest @ 18% per annum was offered. ((-3-)) The request to deposit the amount with the firm was reiterated. Thus, going by the case of the applicant, the liability to return the amount advanced was of the firm. The applicant has not implicated the first respondent by invoking section 141 of the said Act of 1881. The applicant has proceeded against the first respondent on the ground that he had undertaken to discharge the liability of the firm and the cheque was drawn on his personal account. 4. Except for bald assertion that the first respondent agreed to discharge the liability of the firm, there is no material on record to establish that the first respondent had undertaken to discharge the liability. The moment letter at Exhibit-31 is produced by the applicant, it is sufficient to rebut the presumption under section 139 of the said Act of 1881. Therefore, it was for the applicant to lead evidence to prove the personal liability of the first respondent. In absence of any material evidence in that behalf, the order of acquittal has been passed by the learned Judge. As stated earlier, the said view is certainly a possible view. No interference is called for. The application is ((-4-)) rejected. 5. It is made clear that the observations made in this order are only for limited purposes of examining the prayer for grant of special leave to prefer an appeal and none of the observations shall be construed as any finding recorded by this Court as regards rights and liabilities of the parties. (A.S.OKA, J.)