IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1506 OF 2008 M/s.Mita Fasteners Pvt.Ltd. .. Applicants Versus Shree Ghanshyam Auto Parts Pvt.Ltd. & Ors. .. Respondents Mr.Subhod Desai i/by Mr.Nilesh S. Das for the applicants. Mrs.Seema Singh for the respondent nos.2 and 3. Ms. A.T.Jhaveri, A.P.P for the respondent No.4. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 24th February 2009. : 24th February 2009. : 24th February 2009. P.C.: . Heard learned advocate for the applicant in support of this application under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. The applicant is the complainant in a complaint filed against the respondents alleging commission of offence under section 138 read with section 141 of the Negotiable Instruments Act, 1881. The cheque in respect of which the complaint was filed is dated 22nd September 2006 in the sum of Rs.02,19,400/-. The cheque was dishonoured in March 2007. The order of acquittal has been passed by the learned Judge on the ground that on (2) the date on which the cheque was issued there was no subsisting liability of the accused. 2. The learned counsel appearing for the applicant invited my attention to the material part of the affidavit in lieu of examination in chief of the authorised representative of the applicant. He invited my attention to paragraph 7 of the affidavit in which it is stated that when the said cheque was earlier presented it was dishonoured and returned for want of sufficient funds. The learned counsel pointed out that in the said paragraph a specific case has been made out that the accused instructed the applicant to retain the said cheque against the current liability and to re-present the same on the instructions of the accused as the accused were having a running account and continuous business transaction with the applicant. He submitted that this case of existence of continuous running account has not been seriously challenged in the cross-examination of the complaint. He pointed out the defence taken by the respondents. He submitted that the defence of the respondents was not that there was no existing liability but the defence was that of inferior quality of the goods supplied. He submitted that the said defence was not made good by the accused. He, (3) therefore, submitted that the learned Judge has committed an error by passing an order of acquittal. 3. I have carefully considered the submissions. The cheque was issued on 22nd September 2006. Perusal of the complaint shows that according to the applicant the liability arose on account of six bills which are mentioned in paragraph 3 of the complaint. The first bill which is earliest in point of time is dated 16th October 2006 and other five bills are issued subsequently. Thus, the cheque in dispute has been issued prior to the aforesaid six bills. The case made out by the applicant is that the said cheque was earlier dishonoured and on the instructions of the accused it was retained by the applicant against the liability under the running account. Going by the case made out by the applicant in the complaint as well as affidavit in lieu of examination in chief, on the date on which the cheque was issued, there was no liability on the part of the accused as according to the specific case made out in the complaint the liability arose on account of six bills issued from 16th October 2006 onwards. The applicant made out a case in the evidence that the accused had instructed the applicant to retain the said cheque against the future liability. However, no such (4) case was made out in the complaint and in the notice of demand. 4. In the circumstances, the view taken by the learned trial Judge is certainly a possible view which could have been taken on the basis of evidence on record. Even if it is shown that other view could have been taken, no interference can be made in the order of acquittal. No case is made out for grant of leave. Application is rejected. It is however made clear that the observations made in this order are for limited purposes for considering the prayer for grant of leave. Nothing stated in this order shall be construed as any finding on the rights and liabilities of the parties. (A.S.Oka,J)