((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3171 OF 2007 Ocean Diving Centre Limited Applicant versus State of Maharashtra & others Respondents Mr.Shirish Gupte, Sr.Counsel with A.S.Chavan for applicant. Mr.A.P.Mundargi, Sr.Counsel with Ketan A. Chothani for respondents 2 to 4. Ms.A.T.Javeri, APP for State. CORAM : A.S.OKA, J. DATE : 28th January 2009 PC : 1. This is an application for grant of special leave to prefer an appeal under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. The applicant filed a complaint against second to fourth respondents alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881"). 2. The case of the applicant is that the said ((-2-)) company provides accommodation barges on hire for off-shore activities. The second respondent company entered into a "Uniform Time Charter Party" Agreement (hereinafter referred to as "the said agreement") containing terms and conditions on which the applicant agreed to give a barge called "VASUDA" with a motorized AHT Tug owned by it for hire to the second respondent-accused for a period of 40 days. The consideration for mobilisation and hire charges was agreed at Rs.450.00 lakhs for the entire period 40 days. 3. According to the case of the applicant the said barge "VASUDA" along with the AHT Tug Nelson were mobilised on 3rd May 2004 for off-shore activities. According to the case of the applicant, the second respondent-accused started utilizing the services of the barge with effect from 3rd May 2004 as per the terms of the agreement. The case of the applicant is that without the consent of the master (captain), the second respondent unilaterally started utilizing services of another Tug by name "NAND-PANNA" to tow the said barge "VASUDA" to Mumbai Port. Reliance is placed on a meeting held by and between the applicant, ((-3-)) the second respondent and the officials of Oil and Natural Gas Commission as well as the officials of the Bharat Heavy Electricals Ltd.. According to the applicant it was decided in the said meeting that the amounts of Rs.52,89,300/- and Rs.95,20,740/- after deducting tax (deducted at source) were due and payable by the second respondent to the applicant. According to the applicant, the amount of Rs.95,20,740/- was payable by the second respondent before 30th June 2004. Reliance is placed on Minutes of the said meeting. The case of the applicant is that admittedly the said barge was mobilized by the second respondent-accused till 14th May 2004. According to the case of the applicant, the second respondent paid a sum of Rs.52,89,300/- as agreed in the aforesaid meeting and issued a cheque dated 20th May 2004 for the balance amount of Rs.95,20,740/-. According to the applicant, the said cheque was dishonoured. Thereafter, there was correspondence between the parties. According to the applicant, along with a letter dated 1st September 2004 the second respondent forwarded to the applicant a cheque in the sum of Rs.49,62,247/- drawn favouring the applicant. The said cheque was ((-4-)) duly honoured. According to the applicant, by the said letter, the second respondent admitted its liability to pay the balance amount of Rs.45,58,493/-. Towards the discharge of the said liability, the second respondent company issued a cheque dated 20th November 2004 in the sum of Rs.45,58,493/-. The said cheque was forwarded by the second respondent to the applicant along with a letter dated 23rd September 2004. The said cheque was dishonoured and after giving statutory notice, the complaint has been filed. 4. There was a reply issued to the statutory notice by the second to fourth respondents. The case of the second to fourth respondents is that the second respondent had requested the applicant to make arrangement of mobilisation of barge "VASUDA" from 15th October 2004 and keep the same with AHT Tug in readiness with due statutory approvals/clearances. The contention is that the barge was not kept ready by the applicant and was not made available. A contention is raised in the reply that out of the contract period, the second respondent enjoyed actual utilisation from 4th May 2004 to 10th May 2004. The case made out by the second ((-5-)) to fourth respondents is that as the applicant failed to make available the said barge from October 2004, the second respondent was forced to hire services of another barge named in the reply. Therefore, a case is made out that that the amount under the cheque in dispute was not at all payable by the second respondent. By the impugned judgement and order, the learned Magistrate has acquitted the second to fourth respondents by holding that there was no legally enforceable liability. 5. The learned Senior Counsel appearing for the applicant submitted that the impugned order is perverse. He invited my attention to various letters issued by the second respondent and in particular letter dated 1st September 2004. He submitted that in the said letter, the second respondent has admitted its liability to pay the amount payable under the cheque in dispute. He invited my attention to the minutes of meeting held on 13th April 2004 and submitted that even in the said minutes, the admission of liability by the second respondent is clearly reflected. He also placed reliance on a letter dated 14th May 2004 issued by the second respondent. He submitted ((-6-)) that the learned Judge has misread the evidence and documents on record and the impugned order of acquittal is perverse. 6. The learned Senior Counsel appearing for the second to fourth respondents invited my attention to the correspondence on record and especially letters at Exhibits-28 to Exhibits-32. He also invited my attention to the relevant part of the cross examination of the witnesses examined by the complainant. 7. I have carefully considered the submissions. I have perused the notes of evidence and other relevant documents on record. A perusal of the cross examination of the first witness of the applicant Mr.Jacob Joseph shows that the witness admitted that the barge was made available between 3rd May 2004 and 14th May 2004 and the applicant was entitled to receive hire charges for these days. The attention of the witness was invited to the letter at Exhibit-28 which is dated 5th October 2004 addressed by the second respondent to the applicant. By the said letter the second respondent had referred to the said agreement dated 29th April 2004 and requested ((-7-)) the applicant to mobilize the barge with effect from 15th October 2004. The witness admitted that the applicant did not reply to the said letter. He also admitted to have received the letter dated 6th October 2004 at Exhibit-29 from the second respondent. By the said letter, the second respondent had requested the applicant to forward the details of the barge to be mobilized from 15th October 2004. The said witness examined by the applicant admitted that there was no reply sent to the said letter. 8. The witness also admitted of having received letter dated 10th November 2004 (Exhibit-31) sent by the second respondent in which it was recorded that the applicant was not in a position to provide a barge and, therefore, the second respondent was making alternative arrangement. In the said letter it was stated that post dated cheques including the subject cheque of complaint should be returned as the amounts under the said cheques were not payable. Admittedly, there was no reply issued to the said letter by the applicant though the said letter was received by the applicant. The witness also admitted to ((-8-)) have received letter at Exhibit-32 dated 18th November 2004. In the said letter the second respondent reiterated that the applicant had not provided the barge from October 2004 as a result of which the second respondent has suffered loss. In the said letter it was specifically stated that the cheque dated 20th November 2004 for Rs.45,58,493/- was delivered on 23rd September 2004 in anticipation of timely/full performance by the applicant of the said agreement. In fact, by the said letter the second respondent stated that the representative of the applicant may meet the officers of the second respondent for settlement. In response to a question in the cross examination, the said witness of the applicant admitted that the barge was not made available to the second respondent for post monsoon period on the ground that the payment was not made. He also admitted that the said barge "VASUDA" was given to a third party in the post monsoon period. Thus material was brought on record to show that the barge was not mobilised by the applicant for the benefit of the second respondent for the balance period (post monsoon) of thirty days provided under the said agreement. It is pertinent to note ((-9-)) that the cheque subject matter of the complaint is dated 20th November 2004. 9. All these aspects have been considered by the learned Trial Judge in paragraph 34 onwards of his judgement. If the documents on record which are not disputed are considered together with the evidence of the witness examined by the applicant, it appears to me that the view taken by the learned Trial Judge is certainly a possible view. Hence, no case is made out to grant special leave under sub section 4 of section 378 of the said Code of 1973. The application is rejected. 10. It is, however, made clear that the observations made in this order are for limited purposes of considering the prayer for grant of special leave and the said observations shall not be construed as any findings on the issue of liability of the second respondent. (A.S.OKA, J.)