1. This is complainant's appeal against the judgment acquitting the accused for commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I. Act” for the sake of brevity). Respondent is the accused. Appellant and respondent will be referred by their original status before the trial Court.

2. Both the sides adduced evidence before the trial Court. Court refused to give benefit of legal presumption under Section 139 of the N.I. Act to the complainant. Trial Court finds accused successful in making out a probable defence. So, issue before this Court is whether the complainant has proved legal liability and whether trial Court has erred in appreciating the evidence.

3. I have heard Mrs. Ritu Jog, learned Counsel for complainant/appellant and Shri B.N. Mohta, learned Counsel for accused/respondent. With their assistance, I have gone through the record. The complainant and the accused are having different versions about liability covered by the cheque in question. The partnership firm between the complainant and the accused was dissolved and amount covered under the cheque represents the share of the complainant arrived at on the settlement of accounts. This is the complainant's version. Whereas on the other hand, the accused had put up two versions. Denial of constitution of firm, it's dissolution and settlement of accounts is one version. Whereas, taking a hand loan from the complainant, issuing a cheque towards security, repayment of hand loan and misuse of cheque by the complainant is another version.

4. Both parties were knowing each other earlier to the financial transaction of the year 2000, whether it was of a partnership firm/hand loan. Accused was running a shop of selling matching blouse pieces. It was in the name and style as “Didi Matching Blouse” at Nagpur. The shop of the accused was rented one in the name of his father. Whereas, there is a shop of sister of complainant, adjoining the shop of the accused.

5. Overall the foundation of the complainant's case is contribution of money of Rs.2,50,000/- in the partnership business. It was started as per Registered Deed of Partnership, dated 15/11/2000. They continued the business till the year 2005. On persistent demand, accused has shown the income tax returns for the year 2000-01 to 2004-05. They were in the individual name of the accused and not in the firm's name. This created a doubt about bona fides of the accused. Accused gave a resignation notice. Then the accounts were settled and a cheque for Rs.3,25,000/- was issued towards the share of the complainant. It got dishonoured and accused failed to pay amount in spite of receipt of notice.

6. COMPLAINANT EXAMINED FOLLOWING WITNESSES :

a. himself

b. Mangala Uddav Sukhdeve, representative from State Bank of India, where cheque was deposited for encashment.

c. Sudhir Sitaram Desai, representative of Rupee Cooperative Bank, wherein there was current account in the name of Didi Matching Blouse.

d. Prem Ashok Mulchandani, Income Tax consultant, who filed returns.

e. Milind Anand Bhangare, representative from Office of Assistant Registrar of Firms.

Whereas, accused also entered into witness box. Trial Court has given categorical findings on disputed issues. I will deal with them and gave my own findings.

7. FINDINGS OF TRIAL COURT & CORRESPONDING FINDINGS OF THIS COURT:

a. Formation of Partnership Firm :

i. The accused in his evidence has taken inconsistent stand. On one hand, he denied execution of partnership deed, whereas on the other hand, he deposes about equal investment by them in the partnership business and stock being the sole contribution of the accused. Complainant has deposed about the manner of constitution of the firm, execution of partnership-deed and it's registration.

ii. There is also an evidence of Shri Bhangare, representative from the Office of Assistant Registrar of Firms. The deed was produced.

iii. This evidence was sufficient to hold about