IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4069 OF 2007 IN CRIMINAL APPEAL NO. OF 2007 R.V.Bhasin, Advocate .. Applicant V/s. S.N.Biniwale & Anr. .. Respondent Mr.P.Janardhan i/b.R.V.Bhasin for the Applicant. Mr.Nitin Pradhan, Senior Advocate with Mr.Amarendra Mishra for Respondent No.1. Mrs.M.H.Mhatre, A.P.P.for the State. CORAM : A.R.JOSHI, J. DATED : APRIL 27th , 2009. P.C. It is the application for leave to file an appeal against the acquittal of the original accused then Branch Manager of the National Co-Operative Bank Limited. Said acquittal order was passed on 29th September, 2007 by learned Additional Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai. By the said order accused Respondent was acquitted of the offence punishable under section 1 409 and 477 A of Indian Penal Code. This judgment and order which is challenged by the original complainant in the present leave petition which is pending since the year 2007. 2. On previous date and also today heard the arguments of learned Advocate Mr.P.Janardhan and also learned Advocate Mr.Nitin Pradhan respectively for the original complainant and original accused. Perused the record and proceeding of the matter and also the reasoning given by the learned Additional Chief Metropolitan Magistrate, 47th Esplanade Court, Mumbai. 3. It appears that original compliant was filed by present applicant somewhere in December 2000 in person before the additional C.M.M., Mumbai for taking suitable actions against the accused, Manager National Co-operative Bank Mumbai, Nariman Point, Mumbai for the offences punishable under section 499 and 477 A of Indian Penal Code. The main gravamen of the contention raised in the complaint is that when he produced his fixed deposit for Rs.10,50,000/- matured on 30th August, 2000, the accused then being the Manager at Nariman Point, Mumbai branch, made an endorsement on the face of the F.D. and also made rubber stamp and endorsement on the back mentioning in that there was lien of the National Co-Operative Bank on the said F.D. amount. According to the complainant, it was the act of the accused which attracts the 2 provisions of sections 409, 468 and also 477 of Indian Penal Code. In the said compliant it is also prayed for issuance of process for the offences under section 409 and 477 A of I.P.C. 4. During the trial, it appears that according to the documents and the agreement of guarantee, the lien of the bank was over as on 30th July, 1997 and thereafter in fact the F.D. was created by the complainant on 12th May, 1998, which is made prior to the letter D-16. It it tried to argue on behalf of the accused that said letter D-16 is admitted by the accused as he signed the same, however, the cross examination of P.W.2 complainant reveals that he had categorically denied the contention of the said letter as to creating alleged lien in favour of the bank with respect of the amount. During the arguments scope of various sections including sections 403, 405, 463, 464 and 477 A of Indian Penal Code was discussed, and it was tried to argue that there should have been establishment of dishonest intention and the act of the accused must be dishonest or fraudulent, an that there is nothing to interfere with the Judgment of the acquittal. 5. Considering the material which was produced before the trial Magistrate and considering the specific averments of the complainant that it was his own money and nothing to do with the company for which there was alleged lien in favour of the National 3 Co-Operative Bank and still considering that the contents of said lien letter Exh.D-16 are specifically denied by the complainant, in the opinion of this Court, there is a valid issue which is required to be tried in the Appeal. In that even, leave to appeal is required to be granted. In the result, present application is allowed with following order : :: O R D E R :: i. Leave to appeal is allowed. ii. Appeal admitted. iii. Record and proceeding is already on record. Appeal to come in due course. iv. The matter be sent for preparing paper book and be taken before the appropriate Bench in due course. (A.R. JOSHI, J.) 4