/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4212 OF 2007 IN CRIMINAL APPEAL NO. OF 2007 Tata Motors Ltd. ...Applicant Vs. LKP Shares & Securities Ltd. & Ors. ...Respondents --- Shri Kishor Patil for Appellant Shri Rajesh More APP for State ---- CORAM: V.M. KANADE J. DATED 8TH OCTOBER,2008 P.C. 1. Heard the learned Counsel appearing on behalf of the complainant Applicant and for the Respondents. The Applicant had filed this application for leave to file appeal, challenging the judgment and order passed by the Trial Court. By the said judgment and order dated 18.9.1997, the Trial Court was pleased to acquit the Respondent Accused for the offence punishable under section 138 of the Negotiable Instruments Act. Being aggrieved by the said order, the present application for leave to file appeal has been filed. 2. At the very outset, the learned Counsel for the Applicant fairly conceded that he did not want to press the application for leave to file appeal, so far as Respondent No.4 is concerned. The said submission is accepted. / 2 / Hence, leave is not granted against the Respondent No.4. Even otherwise, on the merits of the case and in view of the observations made by the Trial Court in paragraph 5 of the judgment, the Trial Court was justified in observing that no case was made out against the Respondent No.4 since the cheques in dispute have admittedly not been issued by the Accused no.4. Under the provisions of section 138, a complaint can be filed only against a person, who was drawn the cheque and not against any other person except, those persons, who are referred to under section 141 of the Negotiable Instruments Act. 3. So far as the remaining Respondents are concerned, it is submitted by the Counsel for the Applicant that the Trial Court has placed reliance on a judgment of this Court in Company Petition No. 257 of 2005 and has observed that the observation made by the Company Court is binding on him. It is submitted that the Trial Court was thus influenced by the observations made by the Learned Single Judge in this Company Petition. He invited my attention to the judgment of the learned Single Judge of this Court in Company Petition, wherein the learned Single Judge had come to the conclusion that the Respondent had raised a triable offence, and, therefore the Company petition was not maintainable. He submitted that however, the Company Court had specifically observed that the said observations made by / 3 / the Company Judge in the impugned order should not be taken as a precedent and shall not influence any other proceeding that may be initiated against the Respondent Company for recovery of the amount of the Inter Corporate Deposit. In paragraph 11 the following observations has been made: “ We, however, clarify that any observation made by the learned Company Judge in the impugned order or by us in this order shall not influence any other proceeding that may be initiated by the Appellant against the Respondent Company for recovery of the amount of the Inter Corporate Deposit.” He submitted that in spite of the said observations of the Learned Single Judge, the Trial court has been influenced by the said judgment and has made an observation in paragraph 7 as under:- “Admittedly the said Company Petition in respect of amount in dispute itself and the judgment and orders passed by Their Lordships while exercising their original jurisdiction as per the settled proposition of law are binding upon this court.........” As per the judgment and orders of Their Lordships in the aforesaid / 4 / Company Petition, the accused No.4 appears to have been relieved from the liabilities and payment of the disputed amount in view of the undertaking of Fiesta Travel Services (India) Pvt. Ltd. In paragraph 8, the following observations have been made “ As observed above on consideration of documents only Their Lordships while exercising their original jurisdiction have observed that Accused No.4 is not liable to pay the amount.” 4. The learned Counsel for the Applicant, therefore, submitted that the finding recorded by the Trial Court on this issue is liable to be set aside. He further submitted that the other documents also have not been taken into consideration by the Trial Court. He, therefore, submitted that the leave may be granted. 5. On the other hand, the learned Counsel appearing on behalf of the Respondent relied on the judgment of the Learned Single Judge in the case of Hiten Sagar and Anr. vs. IMC Ltd. and Anr., reported in 2001 (3) Mh.L.J. Page 659. He submitted that in the said judgment the Learned Single Judge has held that in order to maintain the complaint under section 138 of the Negotiable Instruments Act, the cheques must be issued in discharge of any liability. He submitted that it was admitted position in this case that / 5 / Respondent Nos.1,2 and 3 were not liable to pay any amount to the Applicant herein and, therefore, the cheques, which were issued for the alleged discharge of interest payable by the Respondent No.4 they could not be made liable under provisions of section 138 of the Negotiable Instruments Act. He submitted that the ratio of the judgment is squarely applicable in this case and on this ground alone, leave to file appeal should be refused. Shri Purandare, the learned Counsel appearing on behalf of the Respondent, on the other hand relied on the judgment of the Learned Single Judge in the case of Vishnu Bhat vs. Narayan Bandekar and others reported in 2008 (1) Mh. L.J. Page 497. The learned Single Judge had relied on the Judgment of the Apex Court in I.C.D.S. Ltd. Vs. Beemna Shabeer and Anr. Reported in 2202, All M.R. (S.C.) 270 and had taken a contrary view. 6. The learned Counsel also submitted that the Complainant's witness had clearly admitted that he did not have any other document and evidence, except his oral statement to show that the Respondents 1,2 and 3 were liable to pay the principle amount or interest. He submitted that on account of the clear admission of the Respondent also leave may be refused. He further submitted that the Trial Court had not merely relied on the observations made by the Company Court in the Company petition and in the judgment independently after referring to the documents at Exhibits 17 to 19, the Trial / 6 / Court had independently came to a conclusion that there was no liability against the Respondent Nos.1,2 and 3. He submitted that, therefore, the view taken by the Trial Court being a possible view, no case is made out for grant of leave. 7. I am afraid that on the issue whether the Complaint can be filed under section 138 for the cheque issued for discharge of liability of any other person, there are two conflicting views taken by the two learned Singe Judge, one in the case of Hiten Sagar and Anr. vs. IMC Ltd. and Anr., reported in 2001 (3) Mh.L.J. Page 659 and other view taken by the learned Single Judge in the case of Vishnu Bhat vs. Narayan Bandekar and others reported in 2008 (1) Mh. L.J. Page 497. Therefore, on that aspect in view of the conflicting judgments, case is clearly made out for grant of leave. 8. Secondly, though it is true that the Trial Court has not relied merely on the judgment of the company petition, in my view an arguable case is made out by the Applicant and, therefore, on these two grounds prima facie case is made out for grant of leave. Leave is therefore, granted. Appeal is admitted. Liberty is granted to file private paper book and apply for fixing date of hearing. V.M. KANADE J.