..(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.821 OF 2007 [LEAVE TO APPEAL] M/s.Penguin Umbrella Works Pvt. Ltd. ..Applicant. Versus Mr.Dayanand Kamat & Anr. ..Respondents. ... Mr.Prakash Naik, Adv. for the Applicant. Mr.A.P.Mundargi, Sr.Counsel i/b. M/s.Sanjay Udeshi & Co. for Respondent No.1. Mr.K.V.Saste, APP, for Respondent No.2-State. ... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 9th June, 2008. DATED : 9th June, 2008. DATED : 9th June, 2008. P.C.: 1. The applicant-orig.complainant has filed this application for leave to file appeal against the judgment and order dated 4th January, 2007 passed by the learned Metropolitan Magistrate, 13th Court, Dadar, Mumbai in C.C.No.784/SS/2002. By the said judgment and order, the learned Magistrate acquitted respondent - orig. accused of the offence under Section of 138 of N.I.Act. 2. The case of the complainant is that he had advanced a loan of Rs.3 Lakhs without interest to ..(2).. the accused. In respect of the legal liability arising from the said loan of Rs.3 Lakhs the accused issued cheque of Rs.3 Lakhs. The said cheque was dishonoured, hence complaint came to be filed. 3. I have heard the learned Counsel for the applicant-Orig.complainant and the learned Counsel for respondent No.1-orig.accused. Perused the judgment and order of the learned Magistrate as well as the evidence which has been annexed. 4. Mr.Naik has submitted that the accused has admitted his liability vide his letter dated 9.1.2002 by the accused to the complainant-company. The said letter is at Exh.P-4. However, from the evidence it is seen that the accused had denied issuing any such letter and he has stated that the same was forged and the same be sent to the handwriting expert to verify the authenticity of the same. Looking to the fact that the accused had denied the said letter, the complainant ought to have led some further evidence in respect of the said letter, ..(3).. however, the same has not been done. 5. The case of the complainant is that the company had advanced the loan and not the Director in his individual capacity. It is seen that the complainant is a registered private limited company. In such case, every transaction of the company is expected to be recorded in the book of accounts and every transaction is to be done after sanction by the Board of Directors. It is not the case of the complainant that the Board of Directors had given sanction for advancing the loan to the accused. No resolution of the Board of Directors is placed on record in respect of advancing the loan to the accused. There is no evidence brought on record by the complainant as to who paid the amount of Rs.3 Lakhs to the accused on behalf of the complainant company and under whose sanction. No books of account or copy of income tax return has been produced on record reflecting the transaction in question. 6. The only evidence on record is that of Mr.Hemang Phopalia who is the Director of the ..(4).. complainant company. He has stated that the amount was advanced to accused by way of loan. The complainant is a company registered under the Companies Act, it is not supposed to make oral transaction with anybody but every transaction of the company is expected to be recorded in writing. The alleged loan transaction must be reflected in the account books as well as income tax returns, but no such evidence is placed on record. As such, there is no iota of evidence to prove that the complainant company has advanced the loan of Rs.3 Lakhs to the accused and real transaction between the parties was of loan. 7. The defence of the accused is that the accused was doing the job of financial consultant in the name of Indus Associates. The accused was required to process the loan of the complainant company. On the loan being processed, the accused was to be paid fees. Therefore, he processed the loan proposal and on the loan proposal being processed the amount was paid to him by way of consultation fee at the rate of 2% of the proposed amount. The cross-examination of Hemang Phopalia ..(5).. probablizes the defence of the accused. In his cross-examination the complainant has admitted that he made the loan proposal to the nationalised bank through the accused in the year 2001. The entire loan proposal was handled by the accused. According to Mr.Hemang Phopalia, he has stated that an amount of Rs.10,000/-, Rs.40,000/- and Rs.2,50,000/- was advanced to the accused by way of three cheques. However, Mr.Hemang Phopalia has stated that he does not remember for what purpose the cheque of Rs.10,000/- was given to the accused. The evidence of Mr.Hemang Phopalia shows that the amount of Rs.2,50,000/- was paid by cheque on the condition that if the loan proposal of the complainant company is accepted by the bank and loan is advanced, then the amount paid to the accused will be considered against consultancy fee. The evidence of Mr.Hemang Phopalia makes it clear that whatever amount is paid to the accused is to be considered as loan only if the loan proposal is rejected. The evidence of the complainant itself shows that the bank had issued letter to him that the loan was sanctioned for Rs.2 or Rs.3 Crores. PW Hemang Phopalia made it ..(6).. clear that whatever amount is paid to the accused will be considered as a loan only if the loan proposal is rejected by United Western Bank of India. So it is clear that the complainant company has used the services of the accused as financial consultant and through the accused a loan proposal is submitted to the Bank. It is also admitted by the witness that consultancy fee of 2% on the loan amount would be charged. This fact itself goes to show that liability of the accused to repay whatever amount received from the complainant will arise only if the complainant has proved that the accused has not rendered his services and no loan was sanctioned. But here PW Hemang Phophalia has given clear admission that loan proposal for Rs.2 to Rs.3 Crore was sanctioned and bank had issued sanction letter for the said amount. The evidence of this witness makes it very clear that the accused has rendered his services as a financial consultant and submitted the loan proposal and accordingly loan of Rs.2 to Rs. 3 Crore was sanctioned to the complainant. If the accused is entitled for consultancy fee at the rate of 2% on the ..(7).. sanctioned loan amount then also he is entitled for more than Rs.3 Lakhs. It is also clear from the evidence of PW Hemang Phophalia that loan of Rs.2 to Rs.3 Crore was sanctioned and said amount was not disbursed not because of any fault in the loan proposal but because the complainant himself has refused to withdraw the loan. In such case the accused cannot be said to be liable to repay the amount of Rs.3 lakhs received by him as it cannot be said that there is failure on the part of the accused to secure loan. 8. The learned Magistrate has reached the conclusion that no legal liability arose and hence he acquitted the respondent accused. Looking to the evidence on record,I am of the opinion that 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. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)