IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.441 OF 2007 IN CRIMINAL APPEAL NO. OF 2007 Shri Madhusudan Shrikrishan .. Applicant v/s. M/s. Emkay Exports and others .. Respondents Mr.Niranjan Mundargi for the applicant. Mr. D.P. Adsule, APP for the State. CORAM : B.H. MARLAPALLE, J. DATED : 8TH AUGUST, 2007 P.C. Heard Mr. Niranjan Mundargi, the learned counsel for the applicant who is the proprietor of M/s. Sagar Synthetics. The complainant claims to have supplied cotton fabrics to the respondent No.1 M/s. Emkay Exports and to discharge the liability against such supplies, the respondent No.1 had issued cheque bearing No.869975 for an amount of Rs.11,58,892/-. The cheque was presented for encashment on 17th July, 2004 and it was dishonoured. Therefore, the statutory notice was issued and on failure to pay the said amount, the applicant filed CC No.763/SS/2004 before the learned Special Metropolitan Magistrate & Judge of Court of Small Causes, Mumbai. The said complaint has been dismissed and all the three accused have been acquitted for the offence punishable under section 138 of the Negotiable Instruments Act as per the judgment and order dated 2.2.2006. Hence this application for seeking leave to appeal under section 378(4) of the Criminal Procedure Code. 2. The accused had not taken any specific defence by filing reply before the trial court or giving reply to the statutory legal notice. However, in the statement recorded under section 313 of the Criminal Procedure Code, several defences were raised and three of them were considered: (a) that the subject cheque was not issued against the payment on supplies of cotton fabrics; (b) the amount of debt for supplies of fabrics was such that it was beyond limitation for recoveries in civil suit and; (c) there was no proof that the cheque was dishonoured when presented to a particular bank. 3. On the second issue, the trial court held that the supplies were made from August, 2001 onwards and the cheque was issued in July, 2004 and therefore, it was within the limitation of three years. Consequently, it could not be termed as out-dated cheque. 4. On the first issue, the applicant could not bring on record any material to show that the fabric was supplied to the accused and the subject cheque was drawn as against these supplies. There were no receipts of transportation of goods or the receipts issued by any of the accused for being received the goods or any other documentary proof like delivery challans etc. and therefore, the trial court upheld the contens of the accused that the disputed cheque was not issued by them on the discharge of legal enforceable debt in respect of the goods purportedly sole to the accused. 5. The trial court also referred to the provisions of section 146 of the Negotiable Instruments Act and held that the bank memo at Exhibit 27 did not bear any official mark of the concerned bank so as to hold that the said memo was really issued by a particular bank. In the absence of the official seal on the memo, duty was cast upon the complainant to establish the fact that the cheque was dishonoured on the grounds referred in the particular memo. Even after the complainant's evidence was recorded, the complainant could not take any steps either by examining the bank's officer or any other person to show that Exhibit 27 was an intimation given by a particular bank which had presented the disputed cheque for encashment. 6. On a specific query before this court, the complainant through the learned advocate has stated that summary suit No.2171 of 2004 has been filed on the Original Side of this court for recovery of Rs.25,22,626/- in respect of the two bills or goods sold and delivered to the present respondent No.1 viz. M/s. Emkay Exports and reference in the said suit is to the disputed dishonoured cheque dated 15.7.2004. It is, thus, clear that the applicant has already resorted to a civil remedy for the recovery of the amount concerning the dishonoured cheque. 7. There is no reason made out for reconsideration of the reasoning set out by the trial court in support of the acquittal order. Hence leave to appeal is refused. Application is rejected. (B.H. MARLAPALLE, J.)