1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.1232 OF 2008. IN CRIMINAL APPEAL ST.NO.254 OF 2008. 1. Kishor S/o Damodharrao Tapke died through his legal representative Shyam S/o Kishor Tapke ... Applicant. Versus Sayed Rafiqoddin Sayed Rahimoddin. ... Respondent. ... Mr.P.C.Mayure, advocate holding for Mr.S.G.Chapalgaonkar, advocate for the applicant. Mr.M.M.Patil (Beedkar), advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 10.09.2009. PER COURT 1. Heard. 2 2. This is an application filed U/s 378 (4) of the Cr.P.C. for leave to appeal. 3. The applicant (complainant) filed a private complaint case bearing SCC No.620/2004, for offence punishable U/s 138 of the N.I.Act. He alleged that the Respondent (accused) was in financial difficulties and, therefore, urged him to start a business of vending bangles. There was an agreement of partnership between them, whereby it was agreed that he would invest the amount for running of the business, whereas the Respondent would look after sale and marketing. Subsequently, in the month of January 2004, the partnership was dissolved. The accounts were settled. The Respondent was found liable to pay amount of Rs.2,75,000/- for which he issued the cheque in question. The cheque was dishonoured when was presented to the Bank. The demand notice was thereafter issued. It was not complied with. Hence, the private complaint case was instituted. 4. The defence of the Respondent was that 3 there was no partnership business of which he and the complainant were the partners. He asserted that father of the complainant deals in private money lending business. He borrowed certain amount from father of the complainant on interest. He repaid that amount to the father of the complainant. The cheque was obtained by his father by way of security and has been misused by the complainant. 5. The learned Judicial Magistrate noticed certain infirmities in the evidence tendered by the applicant (complainant) and hence, did not accept his version. The learned Judicial Magistrate also noticed that the defence of the Respondent was probable. With the result, the judgment of acquittal came to be rendered. 6. Heard learned counsel for the parties. 7. It transpires from the record that the complainant admitted that a written document was brought about in respect of the partnership business. The complainant did not produce any 4 record about his running of such partnership business. He failed to produce the license of the shop nor it appears that he and the Respondent together had obtained any license for vending of bangles in a particular shop. As against this, the Respondent stated on oath that he never was partners of the complainant in the alleged business of bangles. He placed on record diaries (Exh.95 and Exh.96) which indicated that he was having money transactions with father of the applicant. He probabilised the defence about the repayment made to the father of the complainant. Thus, the evidence on record indicate that the Respondent was dealing with father of the complainant and the money transaction between them were going on from time to time. Though P.W.Kishor (complainant) categorically stated that he was ready to produce the original partnership deed, yet, subsequently he backed out. He stated that he was unable to produce the document. Needless to say, the material evidence regarding existence of the partnership business has been suppressed by the applicant (complainant). There is nothing on record, except 5 the bald version of the complainant, to infer the existence of partnershp business between the parties and dissolution thereof in the month of January 2004. The applicant also does not show any document to establish the allegation that as a result of dissolution of the partnership business, the Respondent was found liable to pay a particular amount to him. In this view of the matter, the finding of the learned Judicial Magistrate can not be faulted with. Hence, leave is refused. The application is dismissed. The appeal is dismissed. (V.R.KINGAONKAR,J.) asp/office/Crapp123209