2-alp-227-2017.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 227 OF 2017 (Leave to file appeal) Able Shipping Agencies (I) Pvt Ltd through Dattaram S. Mandavkar … Applicant vs. Sunilkumar J.Shah Prop. of Bharat Cattlefeed Industries … Respondent Mr. Durgesh P. Jaiswal for the Applicant. Ms. Pranali Raut i/b. Legal Catalyst for the Respondent. Ms. Shilpa G. Talhar, APP for the Respondent-State. CORAM : GAURI GODSE, J. DATED : 28th NOVEMBER 2025 ORDER: 1. This application is filed under Section 378(4) of the Criminal Procedure (‘CrPC’) by the original complainant for seeking leave to file an appeal to challenge the order passed by the trial court acquitting respondent no.1 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 2. Learned counsel for the applicant submits that the complainant, i.e. Able Shipping Agencies (I) Private Limited and Able Logistic, are sister concerns. He submits that, as per the Page no. 1 of 7 varsha VARSHA VIJAY RAJGURU Digitally signed by VARSHA VIJAY RAJGURU Date: 2025.12.10 10:42:56 +0530 2-alp-227-2017.doc instructions of the accused, the complainant and the sister company had booked cargo, including stuffing cargo in the container for the export of goods of the accused. In lieu of the services offered by the complainant and its sister concern, the accused made a partial payment. There was a total outstanding of Rs. 3,96,129/-. Even after making part payment, an amount of Rs. 1,28,694/- was due and payable to the complainant and its sister concern. According to the learned counsel for the applicant, an amount of Rs. 1,28,694/- was due and payable to the complainant company, out of which a cheque of Rs. 1,00,000/- was issued by the accused. The cheque deposited by the complainant was returned with an endorsement ‘insufficient funds’. Accordingly, the demand notice was served, and, as the notice was not complied with, the complaint was filed. 3. Learned counsel for the applicant relies upon the oral evidence led by the complainant to support the allegations that the dishonoured cheque was issued towards the amount due and payable to the complainant. He submits that the trial court has relied upon the evidence led by the accused to disbelieve the allegations that the amount of Rs. 1,00,000/- was due and payable. He submits that even from the particulars given in the statement relied upon by the accused, there is no proof of payment of the outstanding amount Page no. 2 of 7 2-alp-227-2017.doc due and payable to the complainant company. He submits that the collective payment allegedly made by the accused was not towards the total outstanding amount of the complainant’s company, as stated in the complaint and supported by oral evidence. He submits that in the complaint, the bifurcation of the total amount due and payable, as against the invoice, is stated in detail, payable to the complainant’s company and its sister concern, i.e., Able Logistic. He therefore submits that the dishonoured cheque was towards the amount due and payable to the complainant. He submits that the transactions of the accused with the applicant and its sister company are not disputed. The complainant had given bifurcation towards the amount due and payable to the applicant and its sister company. 4. Learned counsel for the applicant, therefore, submits that sufficient evidence is produced on record to show that the dishonoured cheque was towards the total outstanding amount due and payable to the applicant - company. He therefore submits that the applicant be granted leave to file an appeal. 5. Learned counsel for the respondent - accused submits that the accused company has raised a defence that the accused company is concerned only with the Able Logistic, i.e. the sister Page no. 3 of 7 2-alp-227-2017.doc concern of the complainant - company. The amount is payable to Able Shipping Agencies (I) Private Limited and Able Logistics. However, the complainant’s entire payment had been made, and no amount was due and payable by the accused. She submits that the accused led evidence to show that the amounts were paid towards the invoice raised by the complainant. She therefore submits that the complainant is not entitled to claim the amount on the ground that there was some amount due and payable towards the sister concern, i.e. Able Logistic. 6. I have perused the papers of the complaint and the supporting evidence annexed to the application. From the evidence and the statements made in the complaint, it appears that the applicant has given bifurcation towards the invoice raised in the name of the complainant’s Able Shipping Agencies (I) Private Limited and in the name of Able Logistic. As per the complaint, the total amount received and due and payable is bifurcated as Rs. 1,28,694/- towards invoices raised by the complainant and Rs. 2,67,435/- due and payable towards the invoice of Able Logistic. Thereafter, the complainant stated that the total outstanding amounts were Rs. 1,28,694/- and Rs. 2,67,435/-. The complaint thereafter states that, as instructed by the accused, the complainant Page no. 4 of 7 2-alp-227-2017.doc deposited the cheque for Rs. 1,00,000/- for encashment, and that the cheque was dishonoured, as stated in the complaint and supported by oral evidence. There was no clarification as to whether the amount of Rs. 1,00,000/- as per the dishonoured cheque was due and payable to the complainant, i.e. Able Shipping Agencies (I) Private Limited. The complainant has alleged the total amount due and payable against which the dishonoured cheque was issued. 7. The accused has led evidence to point out that all the amounts due and payable were already paid, and there was no amount outstanding so far as the accused is concerned. The issuance of the dishonoured cheque of Rs. 1,00,000/- is therefore not accepted by the trial court as the cheque issued towards any legally enforceable liability so far as the complainant is concerned. The trial court has also considered the status of the complainant and its sister concern. During the cross-examination of the complainant’s witness, it was admitted that Able Shipping Agencies (I) Private Limited was a proprietary firm, and the complainant was a private limited company incorporated under the Companies Act. Able Logistics is a proprietary concern recognised as an independent and distinct entity. Hence, as alleged by the complainant, the dishonoured cheque towards the total outstanding Page no. 5 of 7 2-alp-227-2017.doc amount of the complainant and its sister concern is not accepted as payment of any legally enforceable debt. 8. The payment made by the accused for the amount of Rs. 3,00,000/- in favour of the complainant is accepted by the trial court as a probable defence that the amount due and payable towards the complainant was complied with by the accused. Based on the calculations regarding the amount due and payable, and the amount shown to have been paid by the accused, the defence is accepted as probable that the dishonoured cheque was not issued towards the legally enforceable liability. The payment made by the accused is therefore accepted as a probable defence, and the dishonoured cheque is not accepted as a cheque towards any outstanding dues from the accused. 9. In view of the admissions given by the complainant’s witness and the evidence led by the accused, the defence is accepted to be a probable defence that the amounts due and payable were paid, and the dishonoured cheque was against the security during the transactions between the parties. Hence, the presumption under Sections 118 and 139 of the Negotiable Instruments Act is accepted as having been rebutted in view of the evidence led by the accused. On perusal of the allegations in the complaint and the evidence led Page no. 6 of 7 2-alp-227-2017.doc by both parties, the trial court has rightly held that the presumption is rebutted by the accused by leading evidence. 10. Considering the evidence on record, the view taken by the trial court is a plausible view that could have been taken based on the evidence on record. There can be interference in an appeal against acquittal if, after reappreciation of evidence, the only conclusion that could be drawn is that the guilt of the accused is proved beyond a reasonable doubt. In the present case, there is no ground for granting leave to file an appeal against the order of acquittal. 11. The Application is dismissed. (GAURI GODSE, J.) Page no. 7 of 7