1 APPLN-1109-1110-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 1109 OF 2011 IN CRIMINAL APPEAL NO. OF 2011 WITH CRIMINAL APPLICATION NO. 1120 OF 2011 IN CRIMINAL APPEAL NO. OF 2011 Mrs. Nikhat Fatima Rehmat Mirza ... Appellant (Orig. complainant) vs. State of Maharashtra & Ors. ... Respondents Mr Hakim Salim A.R. For the appellant. Mr. Y.M.Nakhwa, APP for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 7th October, 2011. P.C. 1. These applications are filed by the original complainant seeking leave to prefer appeal against the order of acquittal in respect of the original accused Nos. 2 and 3 in the two complaints under Sec. 138 of Negotiable Instruments Act. 2. The complaints reveal, that the accused Nos. 1 to 3 are the partners of 2 APPLN-1109-1110-11.sxw M/s. Deccan Enterprises. The complainant entered into a contract to purchase a flat with the accused No.1 and had made payment of Rs.11,50,000/-. Possession of the flat was not given. For refund of the amount, accused No.1 issued two cheques. Both the cheques were dishonoured and inspite of notice, payment was not made. The learned trial Court convicted the accused No.1 and sentenced him to imprisonment and also directed him to pay compensation in both the matters. However, the trial Court acquitted accused Nos. 2 and 3 holding that neither in the complaint nor in the oral evidence of the complainant it was demonstrated that accused Nos. 2 and 3 were responsible for day-to-day business of the firm and that they were actually involved in the management of the day to day business. 3. I have carefully perused the complaint as also the oral evidence of the complainant. In the complaint, nowhere it is mentioned that accused Nos. 2 and 3 were actively looking after the affairs of the firm or that they were responsible for the conduct of the business of the firm. In the affidavit in examination-in-chief, the complainant had stated that the accused Nos. 1 to 3, as partners of M/s. Deccan Enterprises, were actively involved in the day to day affairs and the offence was committed with their knowledge and with consent of each other. It is not stated how they were actively involved in day to day business and further this evidence is not consistent with the pleadings made in the 3 APPLN-1109-1110-11.sxw complaint. Th cheques were signed by accused No.1 alone and not by accused Nos. 2 and 3. It is an admitted fact that accused Nos. 2 and 3 are wife and daughter of accused No.1. It appears that accused No.1 alone was looking after the business of the firm though accused Nos. 2 and 3 were partners. When an offence is committed under Sec. 138, every person who at the time, when the offence was committed, was in charge and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence as provided under Sec. 141 of Negotiable Instruments act. As per the Explanation, the company means any body corporate and includes a firm. Therefore, only the person, who would be responsible for the conduct of the business of the firm may be held guilty when the offence is committed by the firm. The complaint itself does not show that the accused Nos. 2 and 3 were responsible for the conduct of the business of the firm. Therefore, I find no fault with the order of acquittal in respect of accused Nos. 2 and 3. 4. Therefore, leave to prefer appeal against acquittal of accused Nos. 2 and 3 refused and the applications stand rejected. (J.H.BHATIA,J.)