..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4496 OF 2006 [LEAVE TO APPEAL] Mrs.Bharati Gautam Duggad. ..Applicant. Versus Novatrend Medicament Pvt. Ltd. & 7 Ors. ..Respondents. .... Mr.Jayesh Bansilal Kocheta, Adv. for the Applicant. Ms.Gunjan Shah, Adv. for Mr.S.A.Sawant, Adv. for Respondent Nos.1 to 7. Mrs.M.M.Deshmukh, APP, for Respondent No.8-State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 25th April, 2008. DATED : 25th April, 2008. DATED : 25th April, 2008. P.C.: 1. The applicant-orig.complainant has filed this application for leave to file appeal against the judgment and order dated 18.9.2006 passed by the learned JMFC, Ghodnadi in STC No.607 of 1999. By the said judgment and order, the learned Magistrate acquitted the respondents-orig.accused Nos.1 to 7 of the offence under Section 138 of N.I.Act. 2. Heard the learned Counsel for the Applicant-orig.complainant and the learned Counsel for respondent Nos.1 to 7-orig.accused Nos.1 to 7. ..(2).. Perused the judgment and order of the learned Magistrate as well as the evidence which has been annexed. 3. The case of the complainant is that three cheques for a total amount of Rs.95,000/- were issued by the accused to him, in discharge of legal liability. As the cheques bounced, complaint came to be filed. The said legal liability was payment of interest, deposit and commission in respect of agreement Exh.101. The case of the complainant is that the cheques were issued for the payment of interest, deposit and commission as per agreement Exh.101. However, perusal of the agreement and specifically clause 19 of the said agreement shows that the complainant is not entitled for part refund of the deposit, because the agreement is not terminated. It is pertinent to note that the complainant failed to examine the accountant or produce the accounts. Infact the complainant has admitted that interest and commission was outstanding from January, 1999 to March, 1999 from the accused. In such case the burden was on the complainant to show that amount was outstanding at the relevant ..(3).. time. However, the complainant is silent on this point. The complainant in her cross-examination had deposed that she was ready to produce the accounts to show the commission and interest due from January, 1999 to March, 1999 within eight to ten days. However, she has failed to produce such accounts before the Court. Thus, it is seen that there is no cogent material on record to show the amounts in question which according to the complainant, was outstanding amount of commission and interest. 4. As far as orig.accused Nos.3 to 7 are concerned, there is no averment in the complaint as to how they are concerned with the day to day affairs of orig.accused No.1 company. Mr.Kocheta has submitted that as far as accused No.2 is concerned, he is the Managing Director of the Company and he has signed the cheque in question. 5. The case of the accused is that the outstanding amount of commission and interest was paid to the complainant by Laxmi Midico and Pharamarich. This fact has been admitted by the complainant in her cross-examination. Witness ..(4).. Subodh, in his cross-examination, has deposed that he issued the cheque to the complainant at the instance of the accused. The complainant also in her cross-examination has deposed that Laxmi Medica and Pharmarich had given cheques on behalf of accused company regarding commission and interest and security deposit. 6. Mr.Kocheta has submitted that in view of Exh.109, it is seen that there is enforceable liability. From the evidence of the complainant, Subodh as well as Rajesh, it is clear that the outstanding amount of commission and interest was paid to the complainant. Looking to the evidence on record, the learned Magistrate has come to the conclusion that the cheques were not issued in respect of any legal enforceable liability. Hence, the learned Magistrate acquitted the accused persons. 7. Looking to the evidence on record, in my opinion, the view taken by the learned Magistrate is a reasonable and possible view. Hence no interference is called for. Application for leave to file appeal is rejected. ..(5).. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)