1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.993/2007 Om Shanti Construction Co.Pvt.Ltd. APPLICANT VS Sharad T.Mahadik & Anr. RESPONDENTS Mr.S.V.Marwadi i/b Mr.V.V.Yadav for the Applicant Mr.S.A.Shaikh,APP for State Mr.Sanjeev Sawant for Res.1 CORAM: MRS.MRIDULA BHATKAR,J. DATE :4th SEPTEMBER,2009 P.C. . This application is filed praying leave to appeal under section 378(4) of Criminal Procedure Code against the order of acquittal passed by the learned 6th Jt.Civil Judge,J.D.and J.M.F.C.Thane on 11/12/2006. 2] The complainant is the construction company who has developed a property under the housing scheme in which the accused has purchased a flat for total consideration of Rs.6,64,000/-.Rs.4,14,000/- was the cost of the construction and Rs.1,50,000/- was the cost of the land. Allotment letter of the flat was given on 19/11/1992 and the complainant handed over the possession of the said flat to the accused on 22/10/1994 .On 1/5/2004 the accused contacted the complainant and expressed his intention to sell his flat. At that time the complainant has said that the accused has not paid the total consideration in respect of the flat despite of demands and demanded the 2 amount . The accused ,therefore, gave cheque of the amount of Rs.1,20,000/- which was dishonoured for want of sufficient funds. After giving notice within time the complainant has filed this complaint u/s 138 of the Negotiable Instruments Act for recovery of amount of Rs.1,20,000/- . 3] The learned counsel appearing for the applicant has submitted that the learned Judge has committed an error in dismissing the complaint and holding that the complainant could not establish the amount in the cheque is the legally enforcible liability of the accused. He has further submitted that the complainant has proved the execution of the cheques by the accused. He has further submitted that the amount was due in the year 1994 and the cheque was issued in the year 2004 . He has further submitted that whether limitation starts running afresh on acknowledgment of the debt by the debtor after three years is the issue pending before the Larger Bench .So the acknowledgment of the debt by the accused after 10 years should not be taken that the money claim of the original complainant was expressly barred. 4] Per contra the learned counsel appearing for the respondent has submitted that the applicant/accused has produced original lease agreement(M.O.U.) between CIDCO and Om Shanti Co-operative Housing Society . It was submitted that Om Shanti Housing Society was formed in the year 1991 . Said M.O.U. Between the CIDCO and Om Shanti Co-operative Society is produced before the J.M.F.C. and the said document was rightly appreciated by the learned J.M.F.C.on the point of locus standi of this complainant. It was further submitted that 3 the learned counsel has pointed out that the complainant in the cross examination has admitted this fact and further admitted that premium amount for the lease was paid by the Society to the CIDDO .The learned counsel has,therefore, submitted that thus,there was no contractual liability between the complainant and the accused and the learned Trial Judge has rightly dismissed the complaint. 5] On the background of M.O.U.between the Co- operative Society and CIDCO and the premium paid by the society to CIDCO it cannot be accepted that the cheque was paid by the accused towards the cost of the land. If at all the society has any claim against the member of the society then the society has to recover it from the member and the said amount cannot be recovered by the developer or the construction company. The learned Trial Judge has correctly appreciated the point of locus standi and also rightly held that the complainant could not establish the amount of cheque was legally enforcible liability of the accused against the complainant. So also the cheques were issued undated. Hence the submissions made by the learned counsel for the applicant are not sustainable and it is not a case to grant leave to appeal. Leave to appeal rejected. (MRS.MRIDULA BHATKAR,J.)