1 APPLN 1123 OF 2010 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1123 OF 2010 Shree Ganesh Enterprises .. Applicant -versus M/s Noble Industries Ltd and ors .. Respondents. Mr. Amardev Uniyal, for the applicant. Mrs. M. R. Tidke, APP for the Respondent State. Mr. Prakash Naik, for the respondent No.2. CORAM: R.C. CHAVAN, J. DATED: 9th December, 2011 P.C. 1. This is an application for leave to file appeal against acquittal of the respondents, by the learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai, for the offence punishable under Section 138 of the Negotiable Instruments Act. Learned counsel for the applicant submits that the learned Magistrate has proceeded to acquit respondent on conjectures and surmises inspite of the fact that the accused No.3 had categorically admitted that the liability did exist, not only in reply to the notice but also in statement under Section 313 of the Criminal Procedure Code. However, it is fact that the complainant did not refer to any meetings between the creditors of the accused firm about complainant’s accompanying accused No.3 - B. K. Irani, for collecting 2 APPLN 1123 OF 2010 moneys due to the firm. 2. Learned counsel for the applicant states that even if it is taken that moneys which are shown as recovered were in fact not due, they would cover only first cheque and therefore, respondent ought to have been convicted by the learned Magistrate. First, if the applicant had accompanied accused No.3 Irani for collecting moneys due to the respondent firm, representing the creditors, since it was found by the creditors that the respondent firm was unable to meet out its obligation, it was necessary for the applicant to give its account and whatever had happened. He had not done so. In the cross examination, he admitted at one point that when he goes outstation and received moneys on behalf of firm, he credits it to his personal account. He also admitted that moneys received out of station, does not have any distinguishing mark to ascertain if it is personal money or firm’s money. In view of this the learned Magistrate cannot be faulted for taking view that existence of liability was not established. In view of this leave refused. Appeal dismissed. (R. C. CHAVAN, J.)