1 Cri-A-3446-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 3446 OF 2010 IN CRIMINAL APPEAL NO. OF 2010 M/s. Surbhi Jewellers ... Applicant vs. The State of Maharashtra & Anr. ... Respondents Mr. Niranjan Mundargi, Advocate, for the applicant Mr.D.R.More,APP, for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 8th March, 2011. P.C. 1. The applicant, who is the original complainant, has filed this application seeking leave to prefer appeal against acquittal of the accused, who is respondent No.2 in C.C.15844/SS/07 by the learned Metropolitan Magistrate, 60th Court, Kurla, under Section 138 of Negotiable Instruments Act. 2. According to the complainant, the complainant - M/s. Surbhi Jewellers is a proprietorship concern and Subhash Jain is its proprietor. He had sold 7275.400 grams gold to the accused and towards payment of price, the accused had issued a cheque of Rs.69,39,833/-. The cheque was presented to the concerned Bank, but it was returned dishonoured. Inspite of service of notice, the 2 Cri-A-3446-10.sxw accused failed to make payment of the cheque amount within the stipulated period. Therefore, the complaint was filed. 3. Defence of the accused was that a blank cheque given by him for different purpose was misused by the complainant and there was no such transaction as pleaded by the complainant nor the cheque was issued for payment of price. The Income Tax Officer was examined in defence. It was revealed that Subhash Jain is not the proprietor of M/s. Surbhi Jewellers and in fact Bhanwaribai C.Jain is a proprietor and, therefore, Subhash Jain had no right to file the complaint under Section 138 as a proprietor of M/s. Surbhi Jewellers The invoice of this transaction did not bear any signature of the accused. The amount due from the accused as per its transaction was not shown in the Income tax returns of M/s. Surbhi Jewellers. Even though VAT was allegedly charged on the said sale transaction, the amount of VAT was not shown in the returns submitted to the Sales Tax Authorities. On these grounds, the learned Metropolitan Magistrate held that the complainant had failed to prove the case and acquitted the accused accordingly. 4. On perusal of the judgment and the reasons given by the trial Court for acquittal, I find no illegality, impropriety or mistake in the said order. 3 Cri-A-3446-10.sxw Therefore, I do not see any reason to grant leave to prefer appeal against acquittal. 5. In the result, the application stands rejected. (J.H.BHATIA,J.)