1 cra.4857.09 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPLICATION NO. 4857 OF 2009 Shri. Ratnakar Baburao Kachare ... Applicant Versus Amanulla Mohamed Gous Chamanshaikh ... Respondent Mr. Anilkumar Patil, Advocate for the applicant. Mr. D.R. More, A.P.P. for State. CORAM : SMT. R.P. SONDURBALDOTA,J. DATED : JANUARY 05, 2011 P.C. 1. This is an application seeking leave to prefer appeal from the judgment and order dated 11th September, 2009 passed by the trial court acquitting respondents of the charges punishable under section 138 of N.I. Act. The case of the applicant in the complaint was that on 30th May, 2005 an agreement had taken place between him and respondent no. 1 in respect of purchase and sale of Tata Indicom and other prepaid mobile cards. The proportionate share of profits fixed in the agreement was that the applicant would get 75% share in the profits and respondent 25%. Accordingly the applicant had invested an amount of Rs.5,25,000 in the said business. Out of 2 cra.4857.09 the profits earned from the business, the respondent was liable to pay to the applicant an amount of Rs.1,38,500/­ and an amount of Rs. 1,37,500/­. Accordingly respondent issued two cheques both dated 3rd July. 2006 for the two amounts. The cheques were drawn on Yashwant Coop. Bank Ltd. Miraj. The cheques when presented on 6th July, 2006 were dishonoured for the reason of insufficient fund. Thereafter the applicant served demand notice upon the 1st respondent and on failure to comply with the demand notice filed the proceedings. 2. The defence of the respondent to the prosecution case was that he had obtained the loan of Rs.50,000/­ from the applicant at the interest rate of 13% p.a. and towards repayment of that amount, the applicant obtained two blank cheques from the account of his wife, maintained at Yashwant Cooperative Bank Ltd. Miraj. The disputed cheques are not drawn by him from his bank account and as such he is not liable to pay any amount to the applicant. 3. The trial court on appreciation of evidence found that the applicant had failed to establish that the respondent had given two cheques from his bank account maintained at Yashwant Cooperative 3 cra.4857.09 Bank Ltd., Miraj. in favour of the applicant for discharge of legally enforceable debt. 4. The complainant relied upon the agreement at Exh. 47 under which the business with the respondent started. This agreement does not disclose the investment of Rs.5,25,000/­ by the applicant. As regards the liability of Rs.2,76,000/­ towards the share in the profits of the business, the applicants produced no details of the transaction. The applicant is silent in his evidence about the calculation of the amounts mentioned in the two cheques. In the absence of the calculations, the court found it difficult to believe that on the date of cheques the respondent was liable to pay Rs.2,76,000/­ to the applicant and held that the applicant had failed to discharge his initial burden of proving liability of respondents on the date of the cheques. This is a possible view in the facts and circumstances of the case and the same cannot be interfered with. In the circumstances, the application for leave to file appeal is rejected. (SMT. R.P. SONDURBALDOTA,J.)