1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3830/2009 M/s Ashok Travel and Tours ( I T D C ) Aurangabad Applicant (orig complainant) V E R S U S M/s Classic Travels Services and another. Respondent. (orig. accused.) Shri K.B. Kachhava & Shri Anand Chaware Advocates for the petitioner. Shri S.B.Jadhav, Advocate for the R-1 Mrs. Khekale APP for R-2 CORAM : SHRIHARI P. DAVARE, J. DATE : 9 th JULY, 2010. PER COURT : 1. Heard learned respective counsel for the parties. 2. This is an application preferred by the applicant (original complainant) seeking leave to file appeal against the judgment and order of acquittal dated 29.8.2009, rendered by 9 th Judicial Magistrate First Class, Aurangabad in SCC No.5762/2008, acquitting the respondent (original accused) for the offence punishable under section 138 of Negotiable Instruments Act. 2 3. I have perused the impugned judgment and order of acquittal dated 29.8.2009 as well as record and proceeding with the assistance of learned counsel for the parties. 4. The case of the complainant in short is that the complainant namely Ashok Travels and Tours (ITDC LTD.) is a Government of India Undertaking firm and since 2001 to 2007 CW-1 namely Jaiprakash was in- charge of the travel company at Aurangabad. The accused is a proprietory firm and authorized agent of the complainant-travel company and its proprietor is one Rahul Songire/accused was an authorized booking agent of I.T.D.C. Aurangabad for regular Ajanta and Ellora Sight-seeing tours since January 2000 to 2003. The accused used to arrange the tours for sight seeing of Ajantha and Ellora on behalf of ITDC Aurangabad and used to sell tickets to the tourists for boarding and used to collect full amount from the captioned clients during the period from January 2000 to February 2006 on behalf of and for the complainant travel company. However, it is alleged that accused did not deposit payment amount of Rs.2,75,442/- to the complainant travel company though collected by him from the travelers. Inspite of pursuation the accused did not make the said payment. Ultimately, accused issued cheque No.406107 dated 13.6.2008 drawn on ICICI Bank, Aurangabad for Rs.1,00,000/- against outstanding dues of Rs.2,75,472/-. The complainant presented said 3 cheque for encashment twice i.e. on 13.6.2008 and 3.7.2008 however said cheque was dishonoured and returned unpaid with endorsement ‘insufficient Funds’. Hence, the complainant issued legal notice and called upon the accused to make the payment. However, despite service of said notice, accused failed to comply with the requisitions contained in the said notice. Hence, after observing necessary formalities, the complainant filed complaint under section 138 of Negotiable Instruments Act against accused . 5. Accused appeared in the matter and pleaded not guilty. Evidence was adduced and produced by the complainant. After scrutinizing and appreciating the evidence, learned 9 th Judicial Magistrate First Class Aurangabad acquitted the accused for the offence punishable under section 138 of Negotiable Instruments Act, by judgment and order dated 29.8.2009. 6. Being aggrieved and dissatisfied by the said judgment and order of acquittal, the complainant has preferred present application seeking leave to file appeal against the same. 7. After considering the rival submissions advanced by both learned respective counsel for the parties, and also on perusal of the impugned judgment, it is seen that the learned trial judge has observed that CW 1 Jaiprakash specifically admitted in his cross examination that complainant institute has directors, president, vice president, but he has not filed any 4 resolution of board of directors to show that he is authorized to file complaint on behalf of the complainant institute. It is also observed by the learned trial judge that CW 1 Jaiprakash also admitted that he has not filed any authorization, so he is not authorized to file the complaint on behalf of the complainant institute. In the said context, learned counsel for the applicant invited my attention to Exh.41 Memorandum dated 30.6.2008 and submitted that it is authorization given by Vice President of complainant and hence it cannot be said that there was no authorization. However, on perusal of said memorandum dated 30.6.2008, it is seen that it was issued to Shri Chaudhary and further on perusal of the contents thereof it is seen that it was just instructions to proceed in the matter contacting legal advisor and issuance of notice in case of failure by the party to make payment and to file complaint under N.I. Act and not beyond that. On the same document there is some hand writing addressed to one Jayprakash requesting him to follow up the matter as advised by Vice President. Admittedly, this is not resolution passed by the Board of Directors nor it is authorization issued by Board of Directors. It is simply a communication sent by Vice President I.T.D.C. to one Mr. Choudhary. Hence, this communication cannot be construed as proper authorization to Jaiprakash to file complaint against accused and to prosecute the same and therefore observations made by the learned trial judge in that respect cannot 5 be faulted with. 8. Apart from that, learned trial judge also observed in the impugned judgment that in the present case, what ever material has been brought on record by the complainant is about Classic Travels Related Services and not about the M/s Classic Travels Services and even the cheque in question was also issued by Classic Travels Related services but present complaint has been filed against M/s Classic Travel Services. Both the said establishments are two different entities and therefore it was observed that complainant failed to prove existence of legally enforceable debt against accused. Considering the documents and record and also considering the position that although cheque in question was issued by Classic Travel Related Services and further considering that present complaint has been filed against M/s Classic Travel Services, having two different entities, of both said establishments, reasoning adopted by learned trial judge in that respect also cannot be faulted with. 9. Having comprehensive view of the matter, it is apparent that view adopted by the learned trial judge, after scrutinizing and appreciating evidence is a possible view to be adopted and no perversity is found therein and therefore, no interference is called for under the Appellate jurisdiction. In the result, present application bear no substance and same is devoid of any 6 merit and therefore same stands dismissed. Leave to file appeal stands refused. 10. Record and proceeding be sent back to the trial court. ( SHRIHARI P. DAVARE, J. ) ..... aaa/3830.09