1 APPLN-668.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.668 OF 2011 K.R. Malhotra .... Applicant Vs. Dr. Kishore S. Harbada & Anr. .... Respondents Shri R.A. Shaikh i/b Ms Mona Malhotra for the Applicant. Shri Rajesh More, APP, for the State. CORAM: R.C. CHAVAN, J. DATED: JUNE 24, 2011 P.C: This is an application for leave to file appeal against the judgment of acquittal of the respondent-accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, rendered by the learned Metropolitan Magistrate, 10th Court, Andheri, Mumbai. The learned Magistrate held that the cheques which were dishonoured could not be said to have been issued towards a legally enforceable liability, since they pertain to loans given in the years 1996 and 1997, evidenced by two demand promissory notes. The contention of the learned counsel for the 2 APPLN-668.11 applicant is that since the notes were demand promissory notes and not payable on a particular date till the amounts under the notes were demanded, question of making payment under the notes would not arise. This would require some consideration. That apart, the learned counsel has made available for my perusal the statement of the accused and his evidence tendered before the trial Court. His statement shows that the accused admitted that a cheque was given from his office but claims that it was done without his consent. He stated that sum of Rs.2,50,000/- was advanced by the complainant not to him personally but to the company of which he was a Director. In response to question No.8, the accused stated that there was a loan taken by the company where he was the Managing Director and it was not a personal loan; that the company has not fully repaid the loan to the complainant and therefore the complainant wants to recover the same from the accused. Curiously, in the evidence tendered on oath in the course of cross-examination, the accused stated that, "I have repaid the amount promised in the promissory notes and I do not have receipts. I do not recollect whether the other cheques were also dishonoured.". Thus, the stand taken in the statement under Section 3 APPLN-668.11 313 of Cr.P.C. and that in his deposition on oath as defence witness is irreconcilable. Leave granted. Appeal admitted. Action under Section 390 of Cr.P.C. to follow. The application accordingly stands disposed of. (R.C. CHAVAN, J.)