1 (Cr.appeal 87/10) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.87 OF 2001 Shri Kaushik G. Bhatia .... Appellant. V/s Shri Madhubhai Ratilal Sanghavi and another ..... Respondents. Mr. N. K. Thakore with Mr. Prakash Naik for the appellant. Mr. Mihir Gheewala for Respondent No.1. Mrs M.R. Tidake, APP for the State. CORAM: V. M. KANADE, J. DATE : 13th September, 2010 P.C. 1. Heard the learned Counsel appearing on behalf of the appellant and the learned Counsel appearing on behalf of Respondent No.1. 2. Appellant is aggrieved by the judgment and order passed by the Additional Chief Metropolitan Magistrate, 19th Court, Explanade, Mumbai dated 19th August, 2000. By the said judgment and order, the learned Magistrate was pleased to acquit the respondent No.1 – accused for the offence punishable under section 138 of the Negotiable Instruments Act in five cases viz. C.C. Nos. 327/S/99, 328/S/99, 329/S/99, 330/S/99 and 331/S/99. The learned 2 (Cr.appeal 87/10) Magistrate also was pleased to take cognizance of the case under section 344 of the Criminal Procedure Code and direct that the separate proceedings should be initiated under section 344 of the Criminal Procedure Code against the complainant’s son P.W.1. 3. Being aggrieved by the said judgment and order, one appeal against the acquittal was filed since the five cases were disposed of by a common judgment. 4. Brief facts are that the complainant Gokuldas Naraindas Bhatia was carrying on business as Iron Merchant and, according to him, he had given a loan to the accused to the tune of Rs 25 lacs. The said amount was to be paid with interest. Five cheques were given and when these cheques were deposited, they were dishonoured and, therefore, the complaint was filed against respondent No.1 – accused under section 138 of the Negotiable Instruments Act. 5. The complainant examined three witnesses and produced documentary evidence on record. Trial Court, however, dismissed the complaint on three grounds. Firstly, it was held that statutory notice was not served upon the accused. Secondly, it was held that verification of the complaint was made by the son of the complainant, though he did not have power of attorney on behalf of the complainant. Trial Court also observed that the son of the complainant had made a false statement and misled the 3 (Cr.appeal 87/10) Court. According to the learned Magistrate, at the time of recording verification, he had not disclosed that he was the power of attorney holder of the complainant and that the power of attorney was given subsequently after filing of the complaint and not at the time of recording of verification. Thirdly, it was held that certain alterations were made in the complaint viz. in the cause title it was written in hand that the complaint was filed through C.A. Kaushik Bhatia and lastly it was held that the complainant had not established that there was legally enforceable debt or liability. 6. The learned Counsel appearing on behalf of the appellant submitted that so far as service of notice is concerned, though the xerox copy of the notice was marked as X-2 for the purpose of identification, complainant had brought on record the reply given by the accused by examining P.W.3 and the said xerox copy of the reply was exhibited by the Court. He submitted that, therefore, the reasons given by the Trial Court for coming to the conclusion that notice was not served were not in accordance with law. The learned Counsel invited my attention to the statement of P.W.1 and statement of P.W.3 as also the said notice of the accused which was brought on record. 7. In my view, the said submissions cannot be accepted. I have perused the impugned judgment and order passed by the learned Magistrate. He has given the cogent reasons for coming to the conclusion that the demand notice was not 4 (Cr.appeal 87/10) served and, secondly, the reply of the accused could not be relied upon. It is a well settled position in law that this Court, while deciding the appeal against acquittal and while exercising its powers under section 378 of the Cr.P.C is not expected to re-appreciate the evidence on record. It can interfere with the order of the learned Magistrate only if it finds that findings are perverse or that findings are recorded by taking into consideration the material which is not borne out by the record. In my view, several reasons have been given by the learned Magistrate for not accepting the testimony of P.W.3. The reasons given by the learned Magistrate are plausible reasons and, therefore, I do not think that it will be possible to interfere with the findings recorded by the Trial Court. Since the Trial Court has come to the conclusion that the complainant has not proved service of demand notice, the entire complaint therefore will have to be dismissed on this count alone. Hence, in my view, it is not necessary to go into the other two aspects regarding verification and establishing of the legally enforceable debt. 8. So far as the initiation of separate proceedings by the learned Magistrate under section 344 of the Cr.P.C without referring the case under section 340 of the Cr.P.C is concerned, in my view, the learned Magistrate has clearly exceeded his jurisdiction in issuing such notice to P.W.1. The learned Magistrate has observed that certain additions have been made in the complaint and the name of P.W.1 has 5 (Cr.appeal 87/10) been added subsequently. The fact remains that the complaint has been signed by P.W.1, the son of original complainant Gokuldas Naraindas Bhatia. The verification also has been signed by him. It is possible that power of attorney might have been given by the complainant at a subsequent date and there may be some irregularity in filing the complaint. The fact is that the verification has been recorded by the learned Magistrate himself and in the verification also the P.W.1 has signed. In my view, therefore, there was no question of issuing notice and initiating separate proceedings against the complainant under section 344 of the Cr.P.C. The said order of initiating separate proceedings under section 344 of the Cr.P.C, in my view, cannot be sustained and it is quashed and set aside. 9. Appeal is accordingly disposed of in the aforesaid terms. (V.M. KANADE, J.) 6 (Cr.appeal 87/10)