[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLN.NO.1156 OF 2008 IN CRI.APPEAL NO. OF 2008 Mr.Champaklal Prabhudas Desai ..Applicant Vs. Mr.Seturam shetty @ V.Seturaman and Anr. ..Respondents ... Mr.P.G.Badole Advocate for Applicant Mr.Rajesh More APP for State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : APRIL 28, 2008 DATE : APRIL 28, 2008 DATE : APRIL 28, 2008 P.C. P.C. P.C. 1. This application is filed by the applicant-original complainant for leave to file appeal against the judgment and order dated 10.3.2008 passed by the learned Metropolitan Magistrate, 31st Court, Vikhroli, Mumbai in CC No. 246/SS/2007. By the said judgment and order, the learned Magistrate acquitted the Respondent- orignial accused of the offence under Section 138 of Negotiable Instruments Act. 2. I have heard the learned advocate for the applicant-original complainant and the learned APP for the State. I have perused the evidence which [-2-] has been produced by him as well as the judgment and order. 3. The case of the complainant is that accused purchased various grocery items under nine bills and in discharge of part of the liability, the accused issued cheques for Rs.90,000/- and Rs.25,000/-. As the said cheques were not honoured, the complaint came to be filed. It is an admitted fact that Rs.15,000/- was paid in cash by the accused to the complainant. After the payment of the said amount, the amount due and payable became lesser than the amount of two cheques. Perusal of 9 bills discloses the total liability of Rs.1,29,739.50 ps. Notice Exhibit-18 itself reveals that the accused paid Rs.15,000/- in cash leaving balance of Rs.1,14,739.50 ps. and in discharge of the said liability, the accused issued two cheques for Rs.90,000/- and Rs.25,000/- respectively. The complainant has admitted in his cross-examination that he has received Rs.15,000/- in cash in the past. The learned Magistrate observed that when the total liability due and payable against the accused was lesser than the amounts reflected in the two cheques which is more [-3-] than the liability, it cannot be said that Section 138 is attracted. In support of this finding, the learned Magistrate has placed reliance on the decision in the case of Laxmikant D.Naik Marmali Laxmikant D.Naik Marmali Laxmikant D.Naik Marmali Vs. Santosh V.Naik reported in 2006(2) Vs. Santosh V.Naik reported in 2006(2) Vs. Santosh V.Naik reported in 2006(2) Bom.C.R.(Cri.) 830. Bom.C.R.(Cri.) 830. Bom.C.R.(Cri.) 830. 4. The learned counsel for the applicant has submitted that even if there is some difference in the amount, the case would be made out under Section 138 of Negotiable Instruments Act. In support of this contention, the learned counsel has placed reliance on the decision of this Court in the case of Vasco Urban Co-Operative Credit Society Vasco Urban Co-Operative Credit Society Vasco Urban Co-Operative Credit Society Ltd. Vs. Mrs.Shobha D.Korgaonkar; reported in Ltd. Vs. Mrs.Shobha D.Korgaonkar; reported in Ltd. Vs. Mrs.Shobha D.Korgaonkar; reported in 2005(1)ALD (Cri.) 47, III (2005) BC 423, 2005 CriLJ 2005(1)ALD (Cri.) 47, III (2005) BC 423, 2005 CriLJ 2005(1)ALD (Cri.) 47, III (2005) BC 423, 2005 CriLJ 2465. 2465. 2465. He has specifically relied upon observations in paragraph 19 of the said judgment which are as under: . "It has been held in this case that a perusal of the provisions of Section 138 shows that the amount mentioned in the cheque need not be the same as the amount of consideration that actually [-4-] passed. The words "in whose or in part" of any debt or other liability assumes significance in this context. Even if the cheque is for a lesser amount than the actual amount of consideration, still a cause of action would be available to the payee under Section 138 of the Negotiable Instruments Act. If that is so the question of a cheque for a larger amount than what is actually received by the accused also would make no difference provided the entire amount so mentioned is necessary to discharge the debt or legal liability." 5. However, the decision in the case of Laxmikant Laxmikant Laxmikant D.Naik (supra) D.Naik (supra) D.Naik (supra) on which reliance is placed is of the same Bench which has rendered the decision in the case of Vasco (Supra) Vasco (Supra) Vasco (Supra). The decision in the case of Laxmikant D.Naik is a later decision. Moreover, the issues in Vasco and Laxmikant are slightly different. In Vasco, the issue was in respect of discrepancy in the amount in which case, this Court held that even if the cheque is for the larger amount than the actual amount received by [-5-] the accused, it would make no difference provided the entire amount so mentioned is necessary to discharge the debt or legal liability. However, in the case of Laxmikant, this Court was considering the issue whether the cheques represent amount which is more than the liability or the debt and in such case, it was held that the cheques cannot be said to be issued towards debt or legal liability. In the case of Laxmikant, this Court observed as follows: . "In other words, the suit cheques represent an amount of Rs.1.90 lakhs which was not at all the debt or the liability of the accused towards the complainant and, therefore, it could not be said that the suit cheques were issued by the accused to the complainant towards debt or a liability. It is well settled that when a cheque is for an amount more than due by the accused, section 138 of the Act is not attracted." 6. Thus, in the case of Laxmikant, this Court held [-6-] that where a cheque of amount more than the due by the accused, Section 138 of Negotiable Instruments Act, is not attracted. 7. Useful reference may also be made to the decision in the case of M/s. Pawan Enterprises V. M/s. Pawan Enterprises V. M/s. Pawan Enterprises V. Satish H.Verma, 2003 Bom.C.R. (Cri.) (.N.) 474: Satish H.Verma, 2003 Bom.C.R. (Cri.) (.N.) 474: Satish H.Verma, 2003 Bom.C.R. (Cri.) (.N.) 474: 2003 Cri.L.J. 2146 2003 Cri.L.J. 2146 2003 Cri.L.J. 2146 wherein the cheque was for an amount of Rs.17,745/- and it was undisputed that what was due from the accused was only Rs.10,975/- and, therefore, the Court held that it could not be said that the cheque was issued for discharging the liability to the extent of Rs.17,745/- when what was due, was only Rs.10,975/-. 8. Looking to the evidence on record and the case law on which reliance has been placed by the learned Magistrate, I am of the opinion that the view taken by the learned Magistrate is a reasonable and possible view. 9. It is well settled that if the view of acquittal could have been reasonably arrived at then the mere circumstance that the appellate Court would have taken a different view, would be no [-7-] ground to interfere. In this connection, there is no dearth of authorities but to eschew prolixity, I am referring to only two of them i.e. AIR 1971 AIR 1971 AIR 1971 S.C. 66 Khedu Mohton and Ors. Vs. State of Bihar S.C. 66 Khedu Mohton and Ors. Vs. State of Bihar S.C. 66 Khedu Mohton and Ors. Vs. State of Bihar and C. Anthony Vs. K.G.Raghavan Nair (2003) 1 SCC and C. Anthony Vs. K.G.Raghavan Nair (2003) 1 SCC and C. Anthony Vs. K.G.Raghavan Nair (2003) 1 SCC 1. 1. 1. In the case of C.Anthony C.Anthony C.Anthony, the Supreme Court has observed that unless the findings of the trial Court are perverse or contrary to the material on record, the High Court cannot in appeal substitute its findings, merely because another contrary opinion was possible on the basis of material on record. 10. As stated earlier, the view taken by the learned Magistrate is a reasonable and possible view, hence, no interference is called for. 11. In this view of the matter, application for leave to appeal is rejected. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]