(1) CRI.APP. 2760.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2760 OF 2010 Satish Lakhmichand Bothra .. Applicant VERSUS Dilipkumar Ghevarchand Lodha .. Respondent Mr. Pravin G. Patil, Advocate h/f. Mr. V.R. Dhorde, Advocate for the Applicant Mr. A.G. Lodha, Advcoate for the respondent ... CORAM : V.R. KINGAONKAR, J. DATED : 2ND SEPTEMBER, 2010 ORAL ORDER:- 1. The applicant seeks leave to appeal against the judgment of acquittal rendered in STC no.3376 of 2008 for offence under section 138 of the Negotiable Instruments Act. 2. The applicant is partner of M/s. Dalal Lakhmichand Traders a registered firm, whereas the respondent is partner of a firm styled as M/s Dilip Ghevarchand Lodha. The case of the applicant before the trial Court was that the respondent sold maize (2) CRI.APP. 2760.2010 through the applicant firm and in the context of said transaction an amount of Rs.4,57,000/- was found due for which the respondent issued cheque no.491903 dated 7.6.2008. The cheque was dishonoured when presented to the bank. Though demand notice was served yet it was not complied with within a period of 15 days and as such private complaint case was instituted by the applicant for commission of offence under section 138 of the Negotiable Instruments Act. 3. On basis of certain admissions of the complainant and the material placed on record, the learned Magistrate came to the conclusion that the financial liability was not proved by the complainant/applicant and therefore acquitted the respondent. 4. Heard learned counsel and perused the R & P. 5. The pleadings shown in the complaint do not give details about the transaction of sale of maize by the respondent through the firm of the applicant. (3) CRI.APP. 2760.2010 The demand notice was immediately replied by the respondent. Cross-examination of the applicant reveals that a special register regarding transaction of purchase and sale of the grains by and to the traders was maintained by the applicant. He admits, unequivocally, that all the transactions relating to the respondent have been entered into the said register. He further admits that he did not file any document or record to show entries pertaining to the disputed transaction of sale of the maize. He also admitted that he maintained only loss and profit register. The extracts of such registers and the accounts were not produced in support of the allegation that the respondent was liable to pay amount of Rs.4,57,000/- in the context of the sale transaction of maize. In other words how the liability could be fixed on the respondent is rendered in obscurity. Correspondence placed on record (Exh. 21 and Exh. 22) prima facie indicates that M/s. Kanchan Poultry Farm had purchased the maize through the applicant which was to be supplied by the respondent. It was alleged that since the (4) CRI.APP. 2760.2010 respondent did not supply the grains (goods) M/s. Kanchan Poultry Farm suffered loss of Rs.1,65,000/- which the said party directed the respondent to pay to the complainant party. These are disputed questions of facts and there was no satisfactory evidence led in order to fix such liability for loss caused to the other party. Considering these aspects, the acquittal of the respondent for want of sufficient proof regarding the existing financial liability at the time of issuance of cheque in question, prima facie, appears to be legal and proper. Hence, leave to Appeal is refused. Application is dismissed. Sd/- [V.R. KINGAONKAR, J.] arp