1 WP-3310-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL WRIT PETITION NO. 3310 OF 2009 1. T.C.Easow, ) Aged 81 years, Occupation:Retired, ) Residing at Thannikapurathoot, ) Shankaramangalam Gardens, ) Puramattam Pin 689 543 Via ) Thiruvalla, Kerala. ) 2. Mrs. Betty Jacob, ) Aged 42 years, Occupatin: Housewife) Residing at Thannikapurathoot, ) Shankaramangalam Gardens, ) Puramattam Pin 689 Via Thiruvalla, ) Kerala. ) 3. P.V.Mathew, (Mathia), ) Aged 75 years, Occupatino: Retired, ) Residing at Grave Villa, Arvind ) Nagar, St. Thomas Town Post, ) Bangalore - 560 084, Karnataka. ).. Petitioners (Org.accused Nos.3,4 & 5) Versus 1. Sanjeevani Enterprises, ) having its office at "Ashra", ) A/302, R.C. Patel Road, ) Chandavarkar X-Road No.1, ) Borivali (W), Mumbai 400 092. ) 2. State of Maharashtra. )..Respondents Shri K.K.Malpathak, Advocate, for the petitioners. Shri Ashish Chavan a/w Ms. Saloni Sathe, Advocate for the respondent No.1. 2 WP-3310-09.sxw Smt. V.R.Bhosale, APP, for the respondent No.2 - State. CORAM: J.H.BHATIA,J. DATE : 12th August, 2010. JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties. 2. Respondent No.1 filed a complaint under Section 138 against accused Nos. 1 to 5 and it is registered as Criminal Case No.3757/SS/2005 and it is pending before the Metropolitan Magistrate, 24th court, Borivali. As per the contention in para 2 of the complaint, the accused No.1 - M/s. Manna Trade Lines, is a family concern and accused Nos. 2 to 5 are the persons in charge of and responsible for the day-to-day business activities of the accused No.1. It is contended that during the year 1997, three amounts totalling Rs.2 lakh were advanced by the complainant by way of short term business loan to the accused on the representation that the amount was required for expansion of the family business i.e. M/s. Manna Trade Lines. All the accused persons are the beneficiaries of that family business. On 16.1.1999, the accused No.2 issued a post-dated cheque bearing date 24.12.1999 for payment of Rs.2 lakh in favour of the cmplainant. The cheque was drawn on Centurion Bank Ltd., Nariman Point 3 WP-3310-09.sxw Branch, being accused No.2's bankers. That cheque was dishonoured on presentation and inspite of notice, no payment was made. Hence, the complaint. On the complaint, process was issued against all the five accused persons. The revision against that was rejected. Hence, this petition under Article 227 of the Constitution of India. 3. The learned Counsel for the petitioner pointed out that the cheque was issued by accused No.2 against his own account with Centurion Bank Ltd. and that cheque was dishonoured. It was not the cheque of the accused No.1 or against the account of accused No.1. In the complaint, no specific role was attributed to the accused Nos. 3 to 5 and, therefore, they cannot be held guilty for the offence under Section 138 Negotiable Instruments Act. Even though in para 2 of the complaint, it is stated that accused Nos. 2 to 5 are the persons in charge of and responsible for the day-to-day business activities of accused No.1, no specific role is attributed to accused nos. 3 to 5 in the complaint. In fact, in the very next sentence in para 2, it is stated "It is further submitted that Accused No.2 to 5 together with Accused No.1 are liable to be prosecuted for having consented and/or connived in the commission of the present offence in their respective capacity as stated hereinabove". From this, it is clear that the complainant does not claim that he has knowledge that the accused Nos. 3 to 5 had given consent for 4 WP-3310-09.sxw the transactions. Had he been aware, he would not have pleaded that "they had consented and/or connived." It indicates that according to the complainant, either the accused Nos. 3 to 5 had given consent or had connived in the commission of the offence. Besides this, there is nothing to show what role was played by accused Nos. 3 to 5 in the whole transaction or in running the business of accused No.1. In para 4, it is specifically mentioned that the accused No.2 had issued the post-dated cheque in favour of the complainant drawn on accused No.2's bankers i.e. Centurion Bank Ltd. It means accused No.2 issued the cheque against his individual account and not against the account of the family business. The learned Sessions Court rejected the revision observing that it is not disputed that the company might have issued the cheque. It is further observed that it is the defence that the cheque is not signed by any of the applicants i.e. accused Nos. 3 to 5, however, it is not mentioned who has signed the cheque. It shows that the learned Additional Sessions Judge did not read para 4 of the complaint before making these observations. From para 4 of the complaint, it is clear that the cheque was issued by accused No.2 against his own account and, therefore, none other than accused No.2 could have signed the cheque. 4. Taking into consideration the facts and the pleadings in the complaint, I find that no case is made out under Section 138 read with Section 141 5 WP-3310-09.sxw Negotiable Instruments Act against accused Nos. 3 to 5, who are the petitioners before this Court. 5. Therefore, the petition is allowed. The impugned order issuing process against accused Nos. 3 to 5 is hereby quashed. Rule made absolute accordingly. (J.H.BHATIA,J.)