(1.) Heard the learned Counsel for the applicant.
(2.) The appellant, by this application seeks leave to prefer appeal against the order of acquittal for the offence under Sec. 438 of Negotiable Instruments Act in Case No.538/SS/05 passed by the learned Special Metropolitan Magistrate, Mumbai. According to the complainant, the accused/respondent had issued two cheques of Rs.9 lakh each towards part-payment of his outstanding dues on account of the purchases made by him On 25.4.2005, both cheques were deposited by the appellant and the drawee Bank returned the cheque unpaid with endorsement "attachment received from Crime Branch". Inspite of service the statutory notice making demand, the accused failed to make payment within the statutory period. The trial Court acquitted the accused holding that there is no evidence on record to show that the cheque was dishonoured for want of sufficient funds or sufficient arrangement made with the Bank.
(3.) The learned Counsel for the appellant concedes that there is no evidence on record to show that sufficient funds were not available in the account of the accused when the cheques were returned dishonoured. According to her, presuming that sufficient funds were there and still the cheques were dishonoured because of the attachment of the said account by the Crime Branch, the accused should have made the payment, when the statutory notice was served on him. As he failed to make payment within the stipulated period after service of statutory notice, he is liable to be held guilty under Sec. 138 of Negotiable Instruments Act.