* 1 * Cri.Appln. 3457.2010 7.1.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3457 OF 2010 [FOR LEAVE TO APPEAL] IN CRIMINAL APPEAL NO. OF 2010 Shri. Krishnamoorthy Krishnan S/o. V..K. Krishnan .......Applicant/ Orig.Complainant V/S. 1. Shri. Tapan Kishore Lakhani s/o. Kishore Lakhani 2. The State of Maharashtra .........Respondents (Resp.no.1/Orig.accd no.1) * * * * * * Mr. Ganesh Vaidya, Advocate for the applicant. None for respondent no.1. Mrs. V.R. Bhosale, APP for the State-respondent no.2. Coram : Smt. R.P. SondurBaldota, J. 7 January, 2011. P.C. : 1. This Criminal Application is filed seeking leave to challenge judgment and order dated 12th May, 2010 in C.C. No. 4828/SS/2005 * 2 * Cri.Appln. 3457.2010 7.1.2011 passed by the learned Metropolitan Magistrate, 14th Court, Girgaum, Mumbai acquitting the respondent of the offence punishable under Section 138 Negotiable Instruments Act. 2. The applicant carries on business of dealing with shares, stock etc. Respondent no.1 is doing brokerage business and is a Commission Agent in the Stock Exchange at Mumbai. According to the applicant during the course of the business and dealing of “ the applicant s shares, stocks etc. with respondent no.1/accused, the ’ accused received valuable consideration to the tune of Rs.5,25,000/- from him. Towards repayment of the valuable consideration, he ” issued the cheque in question dated 1st June, 2004 in the sum of Rs.5,25,000/- to the applicant. The cheque when presented for payment was dishonoured for the reason funds insufficient . The “ ” applicant had sent statutory notice to respondent no.1 demanding the payment of the cheque amount. Thereafter, as respondent no.1 failed to make the payment of the cheque amount, the applicant filed complaint being C.C. No. 4828/SS/2005 in the court of Metropolitan Magistrate, 13th Court, Girgaum, Mumbai. The defence * 3 * Cri.Appln. 3457.2010 7.1.2011 of respondent no.1 is that the cheque in question had been issued by him to the complainant not towards any debt due to the applicant, but, for the purpose of buying shares for respondent no.1 3. The complaint by itself does not specify the debt due to the applicant towards the discharge of which the cheque was allegedly issued. The applicant examined himself who produced several documents before the Court including two writings dated 26th October, 2002 (Exhibit-P.4) and the letter dated 31st October, 2002 (Exhibit-P.5). Respondent no.1 examined himself in support of his defence. On appreciation of the evidence, the trial court held that the applicant failed to establish that during the course of his business and dealing with shares etc. respondent no.1 had received valuable consideration to the extent of Rs.5,25,000/- from the applicant or that the cheque in question had been issued by respondent no.1 towards repayment of the valuable consideration. It also held that respondent no.1 established that the cheque in question had been infact issued by him for procuring shares. Since respondent no.1 denied that the cheque in question was issued * 4 * Cri.Appln. 3457.2010 7.1.2011 towards the debt due to the applicant, there has been extensive cross-examination of the applicant on the question of existence of the debt. The trial Court has at paragraph-7 of the judgment, enumerated 22 admissions on the part of the applicant which clearly indicate that there was no evidence as regards any debt due to the applicant from respondent no.1 towards any business transactions. Some of the material admissions are that the applicant had never entered into any client member agreement with respondent no.1. He also had not requested respondent no.1 during the period 1997 to 2003 to help him in his business. There was no evidence available with the applicant that respondent no.1 had dealt with in his shares. There was no contract note or invoice of any share brokers received by the applicant which had been signed by respondent no.1. The applicant did not remember the year in which he transferred the shares to the DEMAT Account of respondent no.1. He infact could not even specify the DEMAT Account number or depository participant of respondent no.1. Not just that, he could not tell his own DEMAT Account number from * 5 * Cri.Appln. 3457.2010 7.1.2011 which the shares were allegedly transferred to the Account of respondent no.1. According to the applicant, the debt of Rs. 5,25,000/- included shares proceeds of certain shares, as also, some loan given by the applicant to respondent no.1. He had claimed that the debt of Rs.5,25,000/- constituted of the amounts under the cheques that had been collected by respondent no.1 to be given to the applicant and some cash received by him for/and on behalf of the applicant from the sub-brokers. He was unable to state any particulars whatsoever of these transactions. Strangely at the same time, the applicant claimed that the amount of Rs.5,25,000/- was infact a loan given by him to respondent no.1. After taking into consideration all these admissions, evasive statements as regards the transactions between the two, and the contradictory claim the trial court disbelieved the word of the applicant as regards the debt due to him. 4. The learned counsel for the applicant, submits that the trial court has not correctly appreciated the documents at Exhibit-P.4 and P.5 which are the writings executed by respondent no.1. These * 6 * Cri.Appln. 3457.2010 7.1.2011 writings according to the learned counsel contain a categorical admission on the part of respondent no.1 that he owed a debt of Rs.5,25,000/- to the applicant towards the transactions including shares of M/s. Palcon Borkar, Vinita Consultants and M/s. Jain and Company. The letter at Exhibit-P.5 refers to the same companies and also to a cheque in the sum of Rs.5,25,000/-. This would mean that respondent no.1 had issued cheque in the sum of Rs. 5,25,000/- to the applicant on 26th October, 2002 and another cheque a few days thereafter i.e. on 31st October, 2002. The trial court found that there was no explanation forthcoming from the applicant as to what had happened to the first cheque in the sum of Rs.5,25,000/- allegedly given alongwith the writing at Exhibit-P.4. Since the applicant seeks to rely upon both the documents i.e. Exhibit-P.4 and P.5 towards the cheque in question, it was necessary for him to explain as to what had happened to the cheque which was received by him earlier. The Court also found that it had been admitted by the applicant that the cheque in question had been obtained by him two years in advance and if the cheque had * 7 * Cri.Appln. 3457.2010 7.1.2011 been obtained two years in advance, it could not have been towards any existing liability as on the date of issuance of the cheque as is claimed in the complaint. In these circumstances, the view taken by the trial court as regards the debt is a plausible view. There is also no other illegality or infirmity in the impugned judgment and order. Hence, the application for leave to file appeal is rejected. [Smt. R.P. SondurBaldota, J]