IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2717 OF 2006 M/s.Hindustan Breweries & Bottling Ltd. .. Applicant Versus M/s.Sargam Enterprises & Ors. .. Respondents Mrs.M.J.Bhatt for the applicant. Mr.Y.S.Shinde, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 02nd February 2009. : 02nd February 2009. : 02nd February 2009. P.C.: . Heard learned advocate for the applicant in support of this application under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. The applicant is the complainant in a complaint under section 138 of the Negotiable Instruments Act, 1881. By the impugned order the learned Judge has acquitted the respondents on the ground that on the basis of the same cheque, demand notice was issued on its first dishonour and the present complaint is based on the second demand notice issued on its second dishonour after re-deposit of the cheque. 2. The learned counsel appearing for the applicant (2) invited my attention to the affidavit in lieu of the evidence of the authorised officer of the applicant. He pointed out that a specific case has been made that on instructions of the respondents-accused the cheque was re-deposited and there is no challenge to the said version of the authorised representative of the applicant. He submitted that in view of this position, the learned Judge has committed an error by holding that the complaint was not maintainable. 3. I have carefully considered the submissions. The law on the point is well settled. In the present case the cheque in question was deposited by the applicant in October 2003. The cheque was dishonoured. On dishonour of the cheque, a notice of demand dated 05th November 2003 was issued by the applicant. The present complaint is based on notice dated 15th December 2003 issued on second dishonour after re-deposit of the cheque. Perusal of the complaint and the notice of demand which preceded the complaint shows that the case of the accused instructing the applicant to re-deposit the cheque has not been made out. The said case has been vaguely made out only in the affidavit in lieu of examination in chief of the authorised representative of the applicant. The said case made out in the affidavit (3) appears to be clearly an afterthought. 4. The conclusion of the learned trial Judge is based on well settled position of law. No case is made out for grant of leave. Application for leave is rejected. It is obvious that the observations made in this order are for limited purposes of considering the prayer made for grant of special leave to prefer an appeal. The observations made therein shall not be construed as any finding on the alleged liability for which the cheque was issued. (A.S.Oka,J)