( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1981 OF 2009 Subhash Bhawarlal Warma APPLICANT VERSUS Anand s/o Chandrakant Vaidya RESPONDENT ..... Mr. G.R. Syed, advocate for the applicant. Mr. S.P. Urgunde, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 31st July, 2009] PER COURT : 1. Heard. 2. The application is for leave to appeal. 3. The applicant is original complainant and had filed private complaint case bearing S.T.C. No. 3144/2007 against the respondent for offence punishable under section 138 of the Negotiable Instruments Act. The learned trial Judge held that existing liability for ( 2 ) payment of the amount shown under the cheques was not proved and that the dishonour of the cheque was due to closure of the account because the liability could not be enforced. It is significant to note that the applicant sought reliance on recitals of an agreement (----------) with the respondent executed in his favour. ON consideration of the recitals of the said agreement, it transpires that certain grocery goods were purchased by the family members of the respondent on credit from grocery shop of the applicant. The mother of the respondent had issued a cheque in order to discharge the financial liability for the amount outstanding against him. The applicant had prosecuted the mother of the respondent for offence punishable under section 138 of the Negotiable Instruments Act. The recitals of the agreement would further show that in the said criminal complaint, there was settlement between the parties and on account of such settlement, eight (8) post dated cheques were issued by the respondent for amount of Rs. 25,000/- payable by instalment of five (5) months. Thus, the said cheques were issued in view of the settlement and admittedly, because there was some financial ( 3 ) liability existing against mother of the respondent. Under the circumstances, it is prima facie difficult to countenance as to how it could be said that there was no legal liability to pay the amount shown under the cheque. The matter requires reconsideration. Consequently, I find that this is a fit case in which leave to appeal needs to be granted. The application is, therefore, allowed. Leave under section 378 (4) of the Criminal Procedure Code is granted. 4. Admit the appeal. Mr. S.P. Urgunde, advocate, waives service for the respondent. 5. The appellant to file private paper book within eight (8) weeks. 6. Call for record and proceedings. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIAPLN1981-09 ( 4 )