rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2829 OF 2008 CRIMINAL APPLICATION NO.2829 OF 2008 CRIMINAL APPLICATION NO.2829 OF 2008 IN IN IN CRIMINAL APPEAL NO. OF 2008 CRIMINAL APPEAL NO. OF 2008 CRIMINAL APPEAL NO. OF 2008 John Luke Sunke .. Applicant Vs. Anandam Gangaram Boda & Anr. .. Respondents Mr.R.D.Suryawanshi for the Applicant. Mr.Pramod J.Pawar for Respondent No.1. Ms.A.T.Javeri, A.P.P.for the State. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. DATED : 27TH JANUARY, 2009 DATED : 27TH JANUARY, 2009 DATED : 27TH JANUARY, 2009 P.C. P.C. P.C. . Heard the learned Advocate for the Applicant in support of prayer for grant of leave to prefer an Appeal. Applicant is a complainant who filed a complainant against the first Respondent alleging commission of offence punishable under section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act 1881). ( 2 ) 2. The case made out in the complaint is that after due negotiation, the Applicant sold a room to the first Respondent in October, 2006 under a document of sale deed dated 11th October, 2006. The case of the Applicant is that the consideration was fixed at Rs.3,50,000/- and towards the balance consideration of Rs.1,00,000/-, a cheque was issued by the first Respondent to the Applicant. The date of the cheque was 22nd November, 2006. The said cheque was dishonoured and thereafter, the Applicant issued a notice of demand. As there was no compliance of the notice of demand, the Applicant filed a complaint. 3. The learned counsel for the Applicant submitted that though in the document of sale consideration of Rs.3,50,000/- was mentioned, the break up was not incorporated to show that only a part payment was made. He pointed out that though general power of attorney dated 11th October, 2006 and affidavit of the same date were executed by the Applicant and though the date of the disputed cheque is subsequent to the execution of the said documents, ( 3 ) before the execution of the aforesaid documents, the first Respondent issued the cheque which shows that balance amount of Rs.1,00,000/- was payable towards consideration. He submitted that the documents executed by the Applicant referred to the payment of entire consideration as the cheque dated 22nd November, 2006 was already handed over by the first Respondent to the Applicant at the time of execution of the said documents. He submitted that in view of the fact that post dated cheque for balance consideration was handed over to the Applicant, in the recitals of the documents it is stated that the entire consideration has been received by the Applicant. He, therefore, submitted that the impugned order is perverse. 4. I have considered the submissions. I have perused the complaint and other documents on record. Not only in the document of sale but also in the power of attorney as well as an affidavit executed by the Applicant on 11th October, 2006, there is a categorical statement made by the Applicant of having received the entire consideration in respect of the ( 4 ) said room. In the complaint, the Applicant has not given any explanation as to why said three documents show that the Applicant had received the entire consideration. Infact, there is no reference in the complaint to the power of attorney and the affidavit executed by the Applicant on 11th October, 2006. The said two documents were subsequently produced by the Applicant during the course of trial. These documents were suppressed by the applicant in the complaint as well as in the examination-in-chief. This fact supports the case of the first Respondent that the disputed cheque was obtained at the instance of police. The learned Judge has drawn an inference that there was no legally enforceable debt or liability of payment of price on the date of issue of cheque. 5. Considering the recitals in the documents executed by the Applicant himself, the view taken by the learned Judge appears to be a possible view which could have been certainly taken on the basis of the evidence on record. Assuming that another view can be taken on the basis of the same evidence, no interference can be made in the Appeal against ( 5 ) acquittal. No case is made out for grant of leave. Application is rejected. 6. It is made clear that the observations made in this order are of limited purposes of considering the prayer made by the Applicant for grant of special leave to prefer an Appeal. The observations shall not be construed as the finding on the rights and liabilities of the parties. (A.S.Oka, J.) (A.S.Oka, J.) (A.S.Oka, J.)