((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.712 OF 2008 Raj Pramod Chauhan Applicant versus M/s.Polycarp Printers (I) Pvt. Ltd. and others Respondents Shivargi Razak i/by Ms.Hema Sharma for applicant. L.R.Casteline for respondents 1 to 3. J.P.Yagnik, APP for State. CORAM : A.S.OKA, J. DATE : 30th March 2009 PC : 1. None appears for the applicant. When the applicant was called out earlier, none appeared for the applicant. Therefore, the application was kept back. The advocate for the first respondent is present. Orders dated 13th March 2009 and 23rd March 2009 read thus:- "13th March 2009 :- After arguing the application fully, the learned counsel appearing for the applicant seeks time. To be placed on 20th March 2009, high on board." "23rd March 2009 :- 1. On 13th March 2009, the submissions of the Advocates appearing for the ((-2-)) applicant were fully heard but an order was not passed as a request was made by the Advocate for the applicant for grant of time. Today, it is pointed out that the Advocate for the applicant is suffering from Malaria and hence, she is unable to attend the court. In view of this statement, stand over till 30th March 2009." 2. As the submissions were fully heard, I am proceeding to pass an order on this application. 3. The applicant is the complainant in complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act"). According to the case of the applicant, the second and third respondents were known to him and he had very cordial and friendly relations with second and third respondents. The second and third respondents are the Managing Directors of the first respondent. According to the applicant, he had rendered financial assistance to accused nos.1 to 3 for their business purposes. Reliance has been placed in the complaint on letter dated 6th February 2001 by which the first and third respondents have allegedly admitted the liability of payment of Rs.8.00 lakhs towards full and final settlement of the dues. It is ((-3-)) contended that out of the aforesaid transaction of settlement and in due discharge of the admitted liability, the second respondent for himself and on behalf of first and third respondents issued a cheque dated 23rd December 2002 in the sum of Rs.5.75 lakhs. The said cheque was dishonoured. Notice was issued and thereafter the present complaint was filed. By the impugned order, the accused have been acquitted. 4. The learned counsel appearing for the applicant submitted that first to third respondents have clearly admitted their liability by letter dated 6th February 2001. The learned counsel submitted that the cheque was not disputed by the respondents. The learned counsel submitted that there is nothing in letter dated 6th February 2001 to show that first to third respondents discharged the liability as on that date. She submitted that there is no evidence on record to show that the first to third respondents had paid a sum of Rs.8.00 lakhs to the applicant in terms of letter dated 6th February 2001. She, therefore, submitted that the learned Trial Judge has committed a gross error by passing an ((-4-)) order of acquittal. 5. I have carefully considered the submissions. The applicant has placed reliance on letter dated 6th February 2001 issued by the first to third respondents which is at Exhibit-27. The said letter has been addressed by the said respondents to the applicant. In the said letter it is stated thus:- "Sub. : Full & Final Settlement of your previous dues. With reference to the above mentioned subject we have come with a sum of Rs.8,00,000.00 (Rupees eight lakhs) in full and final consideration for all outstanding dues payable by us. Against the payment of the above mentioned amount, we are receiving the Promissory notes, Cheques, blank letter heads from Mr.Raj Pramod Chauhan M/s.Raj Combines." 6. It must be noted here that the date of the cheque is 23rd December 2002. In the cross examination the applicant admitted that the accused had executed five promissory notes and five cheques in his favour and that as per the letter dated at Exhibit-27 he had returned all five promissory notes and five cheques to the accused. He admitted that on 7th February 2001 he was not holding any documents in his possession issued by the accused. ((-5-)) 7. The second accused deposed by filing an affidavit in lieu of examination in chief. He stated that in view of the settlement recorded in letter dated 6th February 2001, the first respondent paid a sum of Rs.8.00 lakhs to the applicant against which the applicant returned all the original documents to the first respondent. 8. Considering the evidence on record, the learned Trial Judge recorded a finding that even according to the case of the applicant apart from the liability reflected in letter at Exhibit-27 there was no other liability of the accused nos.1 to 3. The learned Judge recorded a finding on the basis of contents of Exhibit-27 that the liability was discharged on 6th February 2001. The learned Judge, therefore, recorded a finding that the cheque which was issued in December 2002 cannot be in discharge of the alleged liability of Rs.8.00 lakhs which is referred to in letter at Exhibit-27. 9. It will be necessary to refer to the cross-examination of the complainant. He has ((-6-)) stated that "it is correct to say that, accused executed 5 promissory notes and 5 cheques in my favour. Out of these 5 cheques I did not deposit any cheque for encashment. It is correct to say that as per letter dated 06.02.2001 I returned all 5 promissory notes and 5 cheques to accused. It is correct to say that except 5 promissory and 5 cheques accused did not execute any document in my favour. It is not correct to say that on 07.02.2001 I was not holding any document in my possession issued by accused. Witness volunteers I was holding the letter issued by accused dtd.06.02.2001 and 07.02.2001". 10. In view of what is stated by the complainant, the finding recorded by the learned Judge is certainly a possible finding which could have been recorded on the basis of evidence on record. 11. No case is made out for grant of leave. The application is rejected. It is, however, made clear that the observations made in this order are confined to only consideration of prayer for leave and none of the observations made in this order can be construed as any ((-7-)) findings on the rights and liabilities of the parties. (A.S.OKA, J.)