IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1284 OF 2007 Indrayani Construction )..Applicant Versus Shri Amar Vilasrao Patil & Anr. )..Respondents ---- Mr.N.P.Deshpande for the applicant. Mr.A.S.Desai for respondent no.1. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 23.07.2008. PC 1. This is an application for grant of leave to appeal. The accused has been acquitted of an offence under Section 138 of Negotiable Instruments Act. On perusing the impugned judgment and order, I find that the acquittal is based on cogent reasons. It was the case of the Complainant that he had obtained a contract for some civil work from one Ingale-Petkar. According to him, he completed the work and amount of over Rs.17,00,000/- was due from the Contractor. The work was completed under a written agreement to which, admittedly, accused was not a party. It was the case of the Complainant that the accused obtained the monies due to him from the original contractor and a grievance was made that the settlement was arrived at under which : 2 : accused issued a cheque of Rs.17,00,000/-. It appears from the record that the Complainant has not chosen to take any steps for recovery of his dues against the original contractor. If the dues were paid by the contractor to the accused without a proper authority then the amount is still payable to the Complainant. The Complainant has not examined the original contractor to indicate that payments were made to the accused by the false representation made to the accused. In so far as the cheque was concerned, it was the case of the accused that the same was obtained under a threat. He has lodged a complaint in this regard. Once it is admitted that the original liability was not of the accused then it is for the Complainant to prove that the liability was transferred to the accused. This would intend proving the fact that monies were in fact, received by the accused. The non-examination of the contractor is fatal in this regard. In this view of the matter, I am not inclined to entertain the appeal against acquittal. Hence, leave refused. Application stands disposed off. Appeal papers to be filed. (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)