1 Vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2773 OF 08 Mr.Momin Ahmed .. Applicant -versus Mr. P.J.Mathews and another .. Respondents Mr.Satyajeet Mirajkar and Shri.Santosh Singh i/b Pillai & Co for the the applicant Mr.Jose N.Kosby i/b H.H.Nagi & Associates for Respondent No.l Mr. Y.S.Shinde, APP CORAM: A.S. OKA, J. DATED: 3rd February,2009 P.C. 1. Heard learned Counsel appearing for the applicant in support of this application for grant of Special Leave under sub section 4 of section 378 of the Code of Criminal Procedure, l973. The learned Trial Judge has passed an order of acquittal for an offence punishable under section l38 of the Negotiable Instrument Act, l88l, broadly on following grounds : i)In the complaint, a case made out by the applicant was that the first Respondent availed services of M/s General Trading Company and a sum of Rs.50,80,000/- was outstanding against first respondent for the 2 services rendered. But in the examination in chief, the Complainant came out with an altogether new story that loan of Rs.50,80,000/- was granted to the first Respondent and the cheques in question were issued towards discharge of the said liability. ii) The applicant has not produced any document to show that a sum of Rs.50,80,000/- was advanced as a friendly loan by M/s General Trading Company to the accused. iii) The complaint has been instituted by Mr.Moin Ahmed, the Constituted Attorney of Mr.Khaleelur Rehman, the Personnel Manager of General Trading Company. A reliance was placed on a letter dated 23 rd February,2005 to show that said Mr.Khaleelur Rehman was authorized by M/s General Trading Company to institute the complaint. The authority letter dated 23 rd February,2005 has not been proved in accordance with law. iv) Assuming that the authority letter was proved, there was nothing on record to show that the said Khaleelur Rehman was empowered to delegate his authority in favour of Moin Ahmed. v) The complaint was not filed by a competent person and therefore, the same was not maintainable. vi)The complainant has not produced the balance sheet and profit and loss account of M/s General Trading Company and it is not the case of the applicant that M/s General Trading 3 Company does not maintain the accounts. (vii) The applicant produced a photo-copy of bank statement, but the same cannot be read in evidence as the same has not been proved. 2. The learned counsel appearing for the applicant has taken me through the complaint, the Notes of Evidence and other documents. He invited my attention to the letter of authority signed by Mr.Abdul Aziz as a Chairman of M/s General Trading Company in favour of Mr.Khaleelur Rehman. He submitted that the said letter has not been disputed by the first respondent and therefore, the same should have been taken as proved. From the cross examination of the first respondent, he pointed out that the fact that the cheques in question were issued by the first respondent in favour of Khaleelur Rehman has been accepted by the first respondent and therefore, in view of section l39 of the Negotiable Instrument Act, l881, presumption was available in favour of the applicant. He submitted that the complaint has been filed on behalf of General Trading Company as the loan was advanced by General Trading Company and in discharge of the liability, cheques were issued by the first Respondent in favour of Khaleelur Rehman who was the Personnel Manager of the M/s General Trading Company. He submitted that the impugned order is perverse and therefore, appeal is required to be heard on merits. 3. I have carefully considered the submissions. I have perused the notes of evidence 4 and documents. It will be necessary to refer to averments made in the complaint. The complaint has been filed by Mr.Moin Ahmed in his capacity as Constituted Attorney of Mr.Khaleelur Rehman, the Personnel Manager of General Trading Company. In paragraph (l) of the complaint, it is asserted that the cheques in dispute have been issued in the personal name of said Mr.Khaleelur Rehman. In paragraph (3) of the complaint, a specific case has been made out that pursuant to the services availed by the first respondent- accused from the complainant firm (General Trading Company), there is total outstanding due and payable by the first respondent to the complainant firm of Rs.50,80,000/-. It is specifically asserted in paragraph (3) that towards the said outstanding and towards the discharge of the liability, the accused issued three cheques. The said three cheques were dishonoured and therefore, the present complaint was filed. 4. Thus, the paragraph (l) of the complaint makes it clear that payee under the said three cheques was Mr.Khaleelur Rehman who claims to be the Personnel Manager of the General Trading Company. Thus, the payee is the said Khaleelur Rehman. The complaint proceeds on the footing that said Khaleelur Rehman as Personnel Manager has filed the complaint on behalf of General Trading Company and Mr.Momin Ahmed is the constituted attorney of Mr.Khaleelur Rehman. Though the cheques in dispute have been issued by 5 the first respondent in favour of Mr.Khaleelur Rehman, the complaint is not filed by Mr.Khaleelur Rehman in his personal capacity, but it is purportedly filed by his constituted attorney, on behalf of General Trading Company. 5. In the affidavit in lieu of examination in chief of the said Moin Ahmed an altogether new case was made out that when first respondent visited Kuwait, he was in need of large funds and he requested Mr. Abdul Aziz the Chairman of the General Trading Company to give him a friendly loan of rs.50,80,000/- and said money was collected in cash by the first respondent from the company. In paragraph (4) of the affidavit in lieu of examination in chief, it is asserted that first respondent issued cheques in discharge of the aforesaid outstanding liability. Thus, the case made out in the complaint is that the liability of the first respondent for which cheques were issued arises out of services availed by the first respondent from M/s General Trading Company and whereas the case made out in the affidavit in lieu of examination in chief is that the liability arises on account of the loan advanced in cash by M/s General Trading Company to the first respondent. 6. At this stage, it will be necessary to refer to notice of demand dated l8th February,2005 on the basis of which the complaint has been filed. The said notice is issued by an Advocate, by stating that the notice is being issued under the instructions of the said 6 Khaleelur Rehman, Personnel Manager of General Trading company. In paragraph l of the said notice, it is asserted that pursuant to various services availed by first respondent, sum of Rs.50,30,000/- was due and payable by the first respondent. There is no reference in the said notice to the loan allegedly advanced by the General Trading Company to the first respondent. 7. Apart from this, learned Judge has observed that there is an express admission given by Mr.Khaleelur Rehman that he is unable to produce any document to prove that the amount was paid to the first respondent. The learned Judge observed that the balance sheet and the profit and loss account of M/s General Trading Company has not been produced. A reliance was placed by the applicant on a photocopy of the statement of account issued by bank. The same has not been rightly read in evidence in absence of proof. 8. Considering these aspects it was obvious that the presumption u/s l39 of the Negotiable Instrument Act, l88l stands rebutted. There is no evidence adduced by the applicant to show that loan of Rs.50,80,000/- was granted by the applicant to the first respondent. 9. Apart from all this, there is one more aspect which is not noticed by the learned Judge. The specific case made out in the complaint which is reiterated before this Court is that the complaint has been filed on behalf of General 7 Trading Company. The said General Trading Company is not a payee under the three cheques as admittedly the cheques have been drawn in favour of Mr.Khaleelur Rehman. According to the case made out in the affidavit in lieu of examination in chief of Mr.Moin Ahmed, the amount of Rs.50,00,000/- was paid by the General Trading Company to the frist respondent. Therefore, there was no liability in favour of the payee i.e Mr.Khaleelur Rehman. As the specific case made out by the applicant was that the complaint has been filed on behalf of General Trading Company, the learned Judge has considered the alleged letter of authority dated 23rd February,2005 signed by Abdul Aziz, the Chairman of General Trading Company in favour of Mr.Khaleelur Rehman, authorizing him to take steps. The learned Judge has rightly observed that the said letter has not been duly proved. The contention of the learned counsel for the applicant that the said letter has not been disputed and therefore, the same should be treated as proved cannot be accepted. He is unable to point out any material on record to show that the execution of the said letter was duly proved. The said Khaleelur Rehman executed a Power of Attorney in favour of Moin Ahmed authorizing to file the complaint. There is nothing on record to show that General Trading Company had authorized Mr.Khaleelur Rehman to delegate his alleged authority to file the complaint in favour of Mr.Moin Ahmed. 10. If all the aforesaid aspects are 8 considered, it is obvious that the view taken by the learned Judge that the guilt of the first respondent is not established is certainly a possible view which could have been taken on the basis of evidence on record. Hence no case is made out for interference. The application is rejected. 11. It is, however, made clear that the observations made in this order are for limited purpose of examining the prayer for grant of special leave to prefer an appeal. These observations should not be construed as any finding recorded by this Court on the issue of rights and liabilities of the parties. (A.S.OKA J.)