* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2111 OF 2009 Fortis Financial Services Ltd. ..... Applicant vs. State of Maharashtra & Anr. ..... Respondents Mr. Sachin Pande, Advocate for applicant. Mr. J.P. Kharye, APP for State/respondent no.1. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 24TH AUGUST, 2009. PC : 1 This application is for leave to file an Appeal against the judgment and order dated 12th January, 2009 passed acquitting respondent no.2 of the offence punishable under section 138 of the Negotiable Instruments Act. Notice of this application is served upon respondent no.2. He is absent despite service. 2 The applicant company filed proceedings for the offene punishable under section 138 the Negotiable Instruments Act against a company by name Shan Interwell (I) Ltd and respondent no.2, its Director, for dishonour of the cheque dated on 29th March, 1999, for the sum of Rs.15,00,000/-. It * 2 * appears that since Shan Interwell (I) Ltd. was wound up through orders of this Court, the applicant got the trial against the two accused separated. The defence of the Company and respondent no. 2 was that cheque was issued by way of security and not towards any legally enforceable debt. 3 The trial court has dismissed the complaint essentially on the ground that the evidence led by the applicant cannot be accepted since P.W.1, the only witness examined by it had no personal knowledge of the transaction between the parties. P.W.1 had joined the company in the year 2000 whereas the alleged transaction is of the year 1996. The cheque in question was also alleged to have been issued in the year 1996. The applicant contends that the present case is based entirely on the documentary evidence. Since the documents could be produced through P.W.1, his personal knowledge about the transaction in not relevant. 4 It is the case of the applicant i. e. Fortis Financial Services Ltd. that the Company by name Empire Finance Company Ltd. merged with it in the year 1996. On account of the merger, all the debts, liabilities and assets of Empire Finance Company Ltd., came to be owned by the applicant. It became entitled to recover the debts of the merged company. The cheque in question was allegedly issued to Empire Finance Company Ltd., * 3 * 5 The Learned trial Judge took note of the limitations upon the ability of a constituted attorney in deposing in a court of law, imposed by the decision of the Apex Court in Janki Vashdeo Bhojwani and Another vs. Indusind Bank Ltd. & Others. reported in AIR 2005 S.C.439 and Rai Joseph Creado and Ors. v/s. SK.Tamisuddin s/o Late SK. Nazir Ahmed and Others, reported in 2008 (3) Mh.L.J. 705. P.W.1 has deposed on the basis of the power of attorney given to him by the Company. He referred to the resolution of the Company dated 24th January, 2000 but did not produce the same. He was unable to state the transaction in respect of which the proceedings were filed. The complaint also did not specify the details of the transaction. The applicant did not produce balance sheet of the merging company to show that respondent no.2 and his company was one of the debtors. The applicant also did not produce its own balance sheets for the period 2000 to 2008. It also failed to produce its Income Tax returns. In these circumstances, the view taken by the trial court must be held to be a reasonable and possible view. 6 Hence, leave to file appeal is rejected. In view of rejection of the application, the Criminal Appeal also stands dismissed. [SMT.R.P.SONDURBALDOTA, J.]