* 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 881 OF 2011 IN APPEAL NO. OF 2010 IN CASE NO. 1781/SS/2006 Standard Chartered Bank …Applicants/Appellant Orig. Complainant V/S. 1. M/s. Swati Enterprises 2. Mrs. Swati Subir Mukherjee 3. State of Maharashtra ….Respondent nos.1 & 2 Orig.Accused nos.1 & 2 Mr. Durgesh S. Singh i/by. India Law, Advocate for the applicant. Mrs. G.P. Mulekar, APP for the State-respondent no.3. CORAM : SMT. R.P. SONDURBALDOTA, J. 30th August, 2011. P.C. : 1. This application is for leave to prefer appeal against the judgment and order dated 11th March, 2010 passed by the 33rd Court of Metropolitan Magistrate, Ballard Pier, Mumbai acquitting * 2 respondents no.1 and 2 of the offences punishable under Section 138 read with Section 141 of Negotiable Instruments Act. 2. The applicant is Standard Chartered Bank. The complaint filed by the applicant was in respect of the cheque dated 11th September, 2007 in the sum of Rs.15,77, 423/- allegedly issued by the respondents in its favour which cheque when presented for payment had been dishonoured for the reason “exceeds arrangement”. The applicant had thereafter sent the statutory notice to respondents no. 1 and 2. When they failed to comply with the requisition in the notice, it filed the complaint in Case No. 556/SS/2007. It was the case of the applicant in its complaint that the cheque had been issued by the respondents towards the dues payable by them under Bill Discounting/Drawn Down Facility under Channel Finance Facility given by the applicant to them. The respondents in their defence denied that they had issued the cheque in question to the applicant. According to them at the time of grant of the facility, the applicant had obtained signatures of respondent no.2 on some blank cheques one of which, had been misused by the officers of the applicant, filled the same in and presented for payment. According to the respondents, they did not owe any legally enforceable debt in the sum of Rs.15,77,423/- at any point of time. Infact, according to them not just the entire amount due to the applicant had been repaid, but they had overpaid the applicant. * 3 3. The applicant examined its officer in support of its claim and produced documents including the statement of account in respect of Channel Finance Facility. The learned trial Court on the basis of the evidence produced before it, held that the applicant had failed to prove that the cheque in question had been issued towards discharge of legally enforceable debt or liability to acquit the respondents. 4. The trial Court found that there was noticeable difference in the handwriting and ink of the contents of the cheque, such as, the date, payees name, amount in words and figures from that of the signature on the cheque. The officer of the applicant, admitted that such difference in ink of the contents on the cheque exists. In his evidence, the officer had made a bald assertion that the amount overdue on the date of issuance of the cheque i.e. 11th September, 2007 was of Rs.15,77,423/- without explaining the accounts when the statement of accounts in respect of the facility granted to the respondents, tendered in evidence by the applicant does not even contain the figure of Rs.15,77,423/-. It shows that as on 31st August, 2007 the amount to the debit of the account of respondents was of Rs.15,70,967.12/-. The account has been a running account until, 31st January, 2008. It shows that between 31st August, 2007 to 31st January, 2008 the respondents had made as many as 21 deposits of various varying amounts in the account. The last date in the statement of account produced is of 31st October, 2008 showing the * 4 amount due from the respondents as on that date as of Rs. 9,88,606.44/-. The complaint in this case had been filed in the month of November, 2008. The officer of the applicant in his cross- examination admitted that between 13th September, 2007 to 13th October, 2007 i.e. the date of dishonor of the cheque to the date of issuance of the demand notice, the respondents had made total payment of Rs.4,20,967.16/- to the Bank. There is no dispute that the Channel Finance Facility gives credit of 90 days to the respondents for each drawal by them. This would mean that the amounts drawn by the respondents under the facility became due for payment on varying dates depending upon the date of the drawal. In these circumstances, it was necessary for the officer of the bank to explain as to how an amount of Rs.15,77,423/-was due on the date of issuance of the cheque which he failed to do in his examination-in- chief. During his cross-examination, these facts were brought to the notice of the officer but he was unable to comment upon the same. It was further suggested to the officer in his cross-examination that on 10th October, 2007 i.e. the date of statutory notice for demand, the amount due from the respondents to the applicant was only Rs. 2,31,971.24/-. The officer again had no comments to offer. In view of the above evidence, the trial Court held that the applicant had failed to establish that the cheque in question had been issued towards a legally enforceable debt to the applicant. * 5 5. The finding of the trial Court is seen to be fully supported by the evidence on record. Mr. Singh, the learned counsel for the applicant, made a feeble attempt to argue that, as per the bank statement the amount due from the respondents as on 31st August, 2007 i.e. about 11 days prior to the date of the cheque was of Rs. 15,70,967.12/- and, after inclusion of the interest payable on the amount for 11 days, the amount due to the applicant would have been of Rs.15,77,423/-. I find no substance in the argument since no such explanation has been given by the officer of the applicant in his evidence. Besides, the argument does not take into account the credit of 90 days available to the respondents under the facility. Hence, the application for leave to file appeal is rejected. [SMT. R.P. SONDURBALDOTA, J]