1 Appln.: 5235/2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5235 OF 2009 Bridgestone India Pvt. Ltd. .... Applicant (Ori. complainant) Vs. Bosco Fernandis & Ors. .... Respondents (Resp. no.1- Ori. accused) Mr. Jayant Gaikwad with B.V. Phadnis, Advocate for applicant. Mr. Manohar Ramsinghani, Advocate for respondent no.1. Mrs. U.V. Kezriwal, APP for State. Coram : Smt. R.P.SondurBaldota, J. Date : 22nd February, 2011 P.C. 1. This application is for leave to prefer appeal against the judgment and order dated 10th September 2009, passed by the trial Court acquitting the respondent of the offence punishable under Section 138 Negotiable Instruments Act and dismissing the complaint. The complaint has been dismissed on three counts. Firstly that the applicant failed to prove the authority given by the applicant- company to one Mr. Vijay Kamble for presenting the complaint, secondly that there was no evidence before the Court as regards the date of sale and delivery of the goods by the applicant to the respondent. Consequently, there was no material with the court to ascertain that the liability towards which the cheques were 2 Appln.: 5235/2009 allegedly issued was a legally enforceable debt and thirdly that the applicant had not produced original documents before the court to establish the legal debt or liability. 2. It has been contended on behalf of the applicant that the documents and authority of Vijay Kamble had been filed in the Court, at the time of filing of the complaint itself. Further it is claimed that the witness of the applicant had produced the original invoices along with the xerox copies thereof in the court. Then the Court had after verifying the xerox copies with the originals had returned the originals to the applicant because the applicant needed the same in the office for the purpose of producing at the time of audit of the company. 3. Perusal of the record shows that at the time of filing of the complaint, the applicant has authorised one Mr. Vijay Kamble. At the commencement of trial,it had authorised one Atul Bhatnagar, who had filed the first affidavit of examination-in- chief. The complainant, however, substituted him by one Santosh Rawat, who filed another affidavit of examination in chief, As Santosh also could not remain present in the court to subject himself to cross- examination, the complainant filed affidavit of one Mr. Vadiraj Purohit, who was later subjected to cross- examination. The court has noted that witness Vadiraj Purohit did not depose about the authority or any resolution passed by the applicant- company in favour of Mr. Vijay Kamble for presentation of the complaint. Therefore, the authority of Vijay Kamble presenting the complaint 3 Appln.: 5235/2009 was not proved in accordance with law. Mere production of documents in the court at the time of filing of the complaint was not sufficient. It was necessary for the applicant to prove the document through its witness Mr. Purohit. In the absence of proof of the authority, the trial court has rightly held that the authority of Mr. Vijay Kamble for presenting the complaint not being established, the complaint was liable to be dismissed. 4. It is the case of the applicant that in the regular course of business, the applicant sold and supplied goods such as tubes and tyres worth Rs.7,61,647/- to the respondent. It appears that there were about 97 invoices relied upon by the applicant. These invoices however, did not disclose the date of supply of goods. The trial court found that in the absence of this particulars, it was impossible for the court to decide whether the debt was legally enforceable or not. If the claim was time barred, it could not have been said that the debt against which the cheques in question were allegedly issued was legally recoverable debt. 5. As regards production of 97 invoices, there is no dispute that what is on record today are only xerox copies of the invoices. The learned counsel for the applicant refers to the affidavit of examination-in-chief, of the witness of the applicant to show that affidavit does contain a statement that the witness was tendering xerox copies of the invoices along with originals with a request for return of the originals after verifying the xerox copies. However, the record nowhere shows that the originals were actually produced 4 Appln.: 5235/2009 and after verifying the xerox with the originals, the court returned the originals to the applicant. Had this exercise been undertaken the original invoices in possession of the applicant would bear endorsement of the invoices being exhibited in evidence and the exhibit numbers. It is not the case of the applicant that the original invoices bear any such endorsement. In these circumstances, the trial court has taken a correct view on that and acquitted the respondent and dismissed the complaint. No interference is required in the impugned order. Hence, the application for leave to file appeal is rejected. ( Smt. R.P. SondurBaldota, J.)