- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.2188 OF 2007 APPLICATION NO.2188 OF 2007 APPLICATION NO.2188 OF 2007 Nikesh Navinchandra Barot ...Applicant vs. 1.Kantibhai Khemani 2.HICS Cement Ltd. 3.The State of Maharashtra ...Respondents Mr.Niranjan Mundargi i/b Mr.H.E.Mooman for the applicant Mr.J.P.Yagnik A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 6,2009 : MARCH 6,2009 : MARCH 6,2009 P.C.: P.C.: P.C.: 1. Heard the learned counsel for the applicant in support of this application for grant of special leave to prefer an appeal. The applicant-complainant filed a complaint alleging commission of offence under section 138 of the Negotiable Instruments Act,1988 (hereinafter referred to as the said Act) against the first and second respondent. By the impugned order the first and second respondents have been acquitted. 2. The learned counsel for the applicant has invited my attention to the finding recorded by the learned trial Judge. He pointed out that from the observations made by the learned trial Judge in paragraph 6 of the impugned Judgment, it appears that a suggestion was given to the applicant that the second respondent-compant was a guarantor which was accepted by the applicant. he pointed out that it is an accepted - 2 - position that the second respondent accepted its liability as a guarantor. He, therefore, submitted that the cheque in question was issued in discharge of the legally recoverable liability. 3. I have given careful consideration to the submission. In the complaint filed by the applicant, reliance has been placed on the letter dated 5th May 1996 allegedly sent by the first respondent (Managing Director of the second respondent-company) and it is contended that by the said letter the first respondent has accepted the liability to pay the amount and on accepting the liability, the cheque in dispute is issued by the first and second respondents. In the letter dated 5th May 1996 which was relied upon in the complaint the first respondent in his capacity of the Chairman of the second respondent has referred to the outstanding amount due and payable to M/s.Manali Fabricators and Kapil Traders. In the said letter it is recorded that the applicant had admitted to accept a sum of Rs.1,50,00,000/- in full and final settlement of his claim in the capacity of Chairman of M/s.Manali Fabricators and Kapil Traders The said letter records that the first and second respondents have accepted the responsibility for payment of the said amount and in that behalf a cheque in the sum of Rs.1,50,00,000/- will be forwarded in near future. - 3 - 5. The first respondent disputed the signature on the said letter. The letter was sent to the handwriting expert. He opined that the same is not signed by the first respondent. The handwriting expert was examined before the court. The learned trial Judge has believed the opinion of the handwriting expert and has observed that the signatures appearing on the said letter and the cheque are different. 6. Thus, the finding recorded by the learned Judge is that the execution of the said letter is not proved. As the said letter was not proved by the applicant, it is obvious that the liability based on the said letter was not established. 7. In the circumstances, the learned Judge was right in holding that there was no material on record to show that the first and second respondents have accepted the liability of third parties. 8. Merely because the applicant admits correctness of the suggestion that the second respondent was a guarantor, it cannot be said that the case of the applicant specifically based on the letter dated 5th May 1996 is established. 9. The learned trial Judge has drawn a conclusion which is certainly a possible conclusion which could have been drawn on - 4 - the basis of the evidence on record. Another view is possible to be drawn is no ground for interference. Application is rejected. 10. It is, however, clarified that the observations made in this order are for limited purposes of granting the prayer for special leave to prefer an appeal. Nothing observed in this order shall be construed as any finding recorded by this court on the rights and liabilities of the parties. JUDGE JUDGE JUDGE