- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.272 OF 2006 APPLICATION NO.272 OF 2006 APPLICATION NO.272 OF 2006 Smt.Rita Rajesh Kamani ...Applicant vs. Mayank J. Parekh & another ...Respondents Mr.Yogesh Israni i/b Mr.Shrirang Shrimani for the applicant Ms Smita Dundige for Respondent no.1 Mr.Y.S.Shinde A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 26,2009 : MARCH 26,2009 : MARCH 26,2009 P.C.: P.C.: P.C.: 1. Heard the learned counsel for the applicant in support of the prayer for grant of special leave to prefer an appeal under sub section 4 of section 378 of the Code of Criminal Procedure,1973. 2. The applicant filed a complaint under section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as the said Act). The complaint was filed by the husband and constituted attorney of the applicant. The case made out in the complaint and in affidavit in lieu of examination in chief of the husband of the applicant was that the first respondent-accused had purchased cloth of Rs.1,50,000/- from M/s.Shivraj International under invoice dated 23rd June 1998. M/s.Shivraj International is the proprietary concern of the Applicant. The husband of the applicant relied upon the invoice dated 23rd June 1998 which was produced in evidence. - 2 - A specific case made out in the evidence of the applicant is that after receiving the goods, the first respondent returned the goods worth Rs.50,000/-. For the price of balance goods i.e. a sum of Rs.1,00,000/-, two cheques in the sum of Rs.50,000/- each dated 29th June 1998 and 30th June 1998 respectively were issued by the first respondent. The said two cheques were dishonoured and therefore, the present complaint has been filed. 3. The learned trial Judge has passed an order of acquittal on various grounds. The learned counsel for the applicant submitted that the documentary evidence on record shows that the transaction of sale of goods was of the year 1998. His submission is that inadvertently the applicant in her cross examination stated that the transaction was of the year 1995. He submitted that the applicant was not in proper frame of mind and therefore she committed inadvertent error by stating that the transaction is of the year 1995. He, therefore, submitted only on the basis of the said inadvertent mistake on the part of the applicant, the complaint could not have been thrown out. 4. I have carefully considered the submissions. The constituted attorney of the applicant has clearly come out with a case that the goods were sold to the first respondent under invoice dated 23rd June 1998. In the cross examination, - 3 - the husband and constituted attorney of the applicant stated that she was doing business with the first respondent from the year 1995 but in the cross examination he admitted there was no documentary evidence to show that the first respondent returned the goods worth Rs.50,000/-. He admitted that there was no specific brand of goods which were sold and there is no specific description of the goods. He admitted that he had purchased one laptop from the first respondent-accused. The applicant also filed her affidavit in lieu of examination in chief. She stated that the transaction was of the year 1998. However, in the cross examination she stated that in the year 1995, the first respondent came to her shop for the transaction. She stated that "It is correct to say that the transaction took place in the year 1995". In the same paragraph, the applicant stated that it is correct to say that some goods were returned by the accused. She further stated that the accused returned some goods within five days in the year 1995. She stated that she had no documentary evidence to show that the goods worth Rs.50,000/- were returned by the first respondent to the applicant. 5. Thus, the applicant clearly admitted that the transaction was of the year 1995. The documents on which the reliance was placed are of the year 1998. Admittedly, there was no evidence on record to show that the goods worth Rs.50,000/- were returned by the first respondent to the applicant. - 4 - 6. It is not possible to accept the submission that the aforesaid admission regarding the year of the transaction was an inadvertent admission. 7. Therefore, the view taken by the learned trial Judge that the guilt of the first respondent is not established is certainly a possible and probable view. No case is made out for interference. The prayer for grant of leave is rejected. It is made clear that none of the observations made in this order shall be construed as any finding on the rights and liabilities of the parties. JUDGE JUDGE JUDGE