((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2698 OF 2008 Mahesh B. Agrawal Applicant versus Deepak Agarwal and others Respondents A.M.Saraogi for applicant. Y.S.Shinde, APP for State. CORAM : A.S.OKA, J. DATE : 14th January 2009 PC : 1. Heard advocate for the applicant. The applicant is the complainant in the complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act"). According to the case of the applicant he is dealing in the textile chemicals and first and second respondents (first and second accused) are the partners of a partnership firm M/s.Ravi Steels Industries. The specific case of the applicant is that the accused purchased chemical worth Rs.1,47,606=91 Ps. from the applicant for the period between April 1999 to February 2000. According to the applicant three cheques in the sum of Rs.20,000/- were ((-2-)) issued on 7th March 2006 by the accused towards part payment of the value of the chemical supplied by the applicant. The said cheques were dishonoured and thereafter after issuing statutory notice the present complaint under section 138 of the said Act was filed. An order of acquittal has been passed by the learned Magistrate on the ground that the debt allegedly payable under the cheques was not the legally recoverable debt in the sense that the claim of the applicant was time barred. The second ground given by the learned Judge is that there was no evidence adduced to show the role played by the second respondent (second accused). 2. The learned counsel appearing for the applicant in support of this application under sub section 4 of section 378 of the Code of Criminal Procedure, 1908 ("Cr.P.C." for short) submitted that there are clear assertions in the complaint that from time to time the first and second respondents-accused admitted their liability to pay the price of the chemical supplied by the applicant. He submitted that there are averments that the accused were regular customers of the applicant and in fact ((-3-)) an account was maintained of the accused by the applicant and payments were made towards the price of the goods supplied from time to time by the applicant. He invited my attention to what is stated in paragraphs 3 and 4 of the affidavit in lieu of examination in chief of the applicant and stated that in the cross examination there is no serious challenge to what is stated in paragraph 4 of the affidavit in lieu of examination in chief. He, therefore, submitted that the learned Judge has committed an error by holding that the debt was a time barred debt. He submitted that the evidence adduced on record shows that the second accused was a partner of a firm M/s.Ravi Steel Industries and, therefore, the learned Judge has committed an error by holding that the role played by the second accused has not been established. 3. I have carefully considered the submissions. I have perused the complaint and notes of evidence. The complaint proceeds on the footing that from 2nd April 1999 to 11th February 2000 the applicant supplied chemical to the accused persons. In paragraph 3 of the complaint it is alleged that when the applicant ((-4-)) requested from time to time to the accused to make payment of the price of the goods sold, the accused acknowledged the liability by giving promise to clear the same. Thereafter a reference has been made to three cheques issued in the sum of Rs.20,000/- each. It will be necessary to refer to what is set out in paragraphs 2 to 4 of the affidavit in lieu of examination in chief : "2. I am dealing in Textile Chemicals and the accused are my regular customers since 1996-1997. The Accused purchased the chemicals worth Rs.1,59,978/- from me for the period from April 1999 till February 2000. 30 days credit period was given to the Accused for the said payment from the date of bills. The particulars of the bills of materials supplied to the accused and delivery challans are as follows :-" 3. I say that I have produced on record fifteen office copies of above referred Bills and thirteen office copies of Delivery Challans. The contents therein are true and correct. The office copies of the Bills and Challans have been signed by my authorised signatories. I say that, the said office copies of the bills and challans kindly be exhibited and read in evidence. 4. I say that, from time to time I requested the accused to make the payment of outstanding dues. However, the accused showed their willingness to discharge the liabilities and acknowledged the said liabilities by giving promises to clear the same. The accused were in financial difficulties hence they always requested me to give some period for making the payment." ((-5-)) 4. Thus, the case made out by the applicant himself that thirty days credit was given to the accused from the date of bills. Bill numbers and dates thereof have been set out in paragraph 2 of the examination in chief. The said averments are contrary to the case of the applicant that a current/running account of the accused was maintained by the applicant. The statements made in paragraph 4 of the affidavit regarding acknowledgement of the liability by the accused are very vague. No particulars such as month or year in which acknowledgements were made have been incorporated either in the complaint or in the affidavit in lieu of examination in chief. As stated earlier, the goods were supplied during the period between 2nd April 1999 and 11th February 2000 and the cheques were issued on 7th March 2006. There is no evidence to show that there was an acknowledgement in writing by the accused as provided under the Limitation Act, 1963 for extending the period of limitation. 5. In this view of the matter, the view taken by the learned Magistrate is certainly a possible view which could have been taken on the basis of material on record. Even if it is ((-6-)) established that it is possible to take another view on the basis of the said evidence, that is no ground to interfere in an appeal against acquittal. Hence, no case is made out for grant of leave. The application for leave is rejected. 6. It is clear that the observations made in this order are for limited purpose of considering the prayer for grant of special leave to prefer an appeal in the context of limited scope of appeal against acquittal and the findings recorded by this order will not bind the parties in any other proceedings. (A.S.OKA, J.)