/ 1 / CRIMINAL APPELLATE JURISDICTION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPLICATION NO.3437 OF 2008 ALONG WITH CRIMINAL APPLICATION NO.3438 OF 2008 ALONG WITH CRIMINAL APPLICATION NO.3439 OF 2008 ALONG WITH CRIMINAL APPLICATION NO.3440 OF 2008 ALONG WITH CRIMINAL APPLICATION NO.3441 OF 2008 ALONG WITH CRIMINAL APPLICATION NO.3442 OF 2008 Harish K. Chandak ...Applicant vs. Raju Bhandari & Ors. ...Respondents --- Pushpa H. Goswami & H.K. Vazirani for Applicant D.P. Adsule APP for State ---- CORAM: V.M. KANADE J. DATED 14TH OCTOBER,2008 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant. The Applicant is the Original Complainant, who has filed the complaint against the Accused Respondent for the offence punishable under section 138 of the Negotiable Instruments Act. The Applicant had executed an agreement with the Respondent dated 11.11.2002 for the supply of certain goods. By a subsequent agreement and letter of understanding dated 15.11.2002, it was / 2 / clarified that the goods would be supplied either to the Giriraj Pvt. Ltd. Company or through Giriraj Enterprises. Thereafter the goods were supplied and two cheques were issued by the Respondents for the payment of the liability, which was due and payable pursuant to the goods being supplied by the Complainant to the Accused. The cheques however, were dishonoured and a statutory demand notice was served. Complaint was filed by the Complainant. The Trial Court has convicted the Respondent Accused under section 138 of the Negotiable Instruments Act. However, an appeal was filed against this order and the Sessions Court was pleased to allow the appeal filed by the Respondent and acquitted the Accused. Being aggrieved by the aforesaid order, the Complainant has filed his application for leave to file appeal. The learned Counsel for the Applicant has submitted that the Sessions Court had noted that after initial agreement was executed on 11.11.2002 and subsequent letter of understanding was executed between the parties on 15.11.2002, no finding has been recorded by the Appellate Court regarding the legal effect of the letter of understanding dated 15.11.2002. She submitted that in the second letter dated 15.11.2002, the parties had specifically agreed that initial agreement was executed between the Company and the Respondent Accused. By virtue of the second letter, it was agreed that the goods may be supplied to the accused either through the / 3 / private limited company or through the proprietary firm Giriraj Enterprises. The Appellate Court without reference to the second agreement has recorded a finding that Giriraj Enterprises, which was a firm, which had delivered the goods could not have filed the complaint, and, therefore, there was no legally enforceable liability. He further held that Giriraj Enterprises being a proprietary firm, it was not a legal entity. In my view prima facie case is made out for grant of leave. The Lower Court has obviously ignored the subsequent letter of understanding dated 15.11.2002 though it has noticed that such an agreement was executed to the parties. Hence, leave is granted. Appeals are admitted. V.M. KANADE J.