( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4363 OF 2007 Suraj Windoor Private Limited APPICANT VERSUS Aurangabad Automotive Pressing Private Limited and another. RESPONDENT ..... Mr. A.H. Kasliwal, advocate holding for Mrs. Netrali Jain, advocate for the applicant. Mr. N.G. Kale and Mr. P.H. Kapadia, advocates for respondents No. 1 and 2. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 9th September, 2009] PER COURT : 1. The applicant seeks leave to appeal under section 378 (4) of the Criminal Procedure Code. 2. The applicant filed a private complaint case for offence punishable under section 138 of the Negotiable Instruments Act wherein the respondents have been vide the impugned judgement. 3. Heard learned counsel for the parties. 4. The applicant alleged that the cheque was ( 2 ) issued by the respondents, but it was dishonoured because instruction was given by them to stop the payment. A demand notice was issued and duly served. It was not complied with and, therefore, allegedly, the offence was committed. Considering the oral and documentary evidence, the learned Judicial Magistrate came to the conclusion that the appellant failed to prove existing financial liability for which the cheque could have been drawn. The testimony of CW1 Kishor purports to show that there was credit transaction between the appellant and the respondent. The cheque was issued towards part payment of the amount due towards the respondent. Similar is the version of CW2 Raju. The defence of the respondents was that the cheque was given by way of standing security in order to continue the credit transactions between the parties. It was flatly denied that the cheque was issued in order to discharge existing debt or financial liability. 5. On consideration of the version of DW1 M.S. Sehgal and DW2 Siddharth More, it would transpire that the appellant used to carry out processing work of different spare parts for and on behalf of the ( 3 ) respondents. Their versions purport to show that the payment was stopped because the cheque was being misused. The version of CW Kishor does not show, with specification as regards the transactions in respect of which the vouchers (Exh-23) stand for. The respondents (accused) probabalized the defence by showing that the amount of the dishonoured cheque was already paid to the appellant prior to service of the demand notice. The reply notice dated 26-04-2003 also indicated that the payment was already made and nothing was due. The appellant failed to establish any interconnection between the transaction in respect of demand draft No. 814229 and the disputed cheque. The appellant failed to establish that the payments made by the respondents were for any different purposes and not in connection with the liability which previously existed and inspite of such payments, yet, there was liability to be discharged for which the cheque in question was issued. Considering the reasoning of the learned Judicial Magistrate and the probability of the defence being worth acceptance, I do not find substantial reason to grant `special leave’ within the meaning of sub-clause ( 4 ) (4) of section 378 of the Criminal Procedure Code. Hence, the leave to appeal is refused. The application for leave to appeal is dismissed. Consequently, the appeal stands dismissed. [ V.R. KINGAONKAR ] JUDGE NPJ/criapln4363-07