1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1441 OF 2008 WITH CRIMINAL APPLICATION NO.1442 OF 2008 WITH CRIMINAL APPLICATION NO.1443 OF 2008 WITH CRIMINAL APPLICATION NO.1444 OF 2008 Nenshi Korshi Shah ..Applicant V/s. Krunal V. Dalal & anr. ..Respondents Mr.Sudeep Pasbola, Advocate, for applicant Ms.A.A.Mane, A.P.P, for the State CORAM : K.U.CHANDIWAL, J. DATE : 12TH AUGUST, 2008 P.C. . Heard. 2. For the purposes of facts, the details in Criminal Application No.1441 of 2008 are referred. The complainant Nenshi in the capacity as Proprietor of M/s.Neko Trading Company has allegedly supplied Denim of Mafatlal Mills on 11th September, 1997 to Mr.Vipul Amarsingh Verma Proprietor of M/s.Lucky Jeans Processor. Said 2 Verma issued a cheque for the bill amount. However, at the representation, the complainant did not present the said cheque. Then accused No.1 requested accused No.2 to accept his liability and to issue the cheque in discharge of liability to accused No.1 from the account maintained by the accused No.2, and accused No.2 issued a cheque No.289737 dated 25th June, 1998 for Rs.26,780/- drawn on Dena Bank, Ghatkopar Branch, Mumbai. The said cheque on presentation came to be dishonoured with cheque return memo dated 20th August, 1998. This was followed by sending notice dated 28th August, 1998 to the accused by R.P.A.D and since there was no response a complaint came to be filed before the learned Metropolitan Magistrate. 3. The learned Metropolitan Magistrate on filing of application for recalling the process, by his Order dated 8th May, 2003 had discharged both the accused. The matter was taken in revision before the Sessions Court by the complainant and by Order dated 11th June, 2004 the learned Additional Sessions Judge, Greater Bombay set aside the order. 3 Thereafter, the matter was heard on merits and the impugned Judgment acquitting accused came to be filed which is the subject matter of challenge. 4. The accused/respondent No.2 has denied acceptance of any liability of Mr.Vipul Verma and giving of a cheque towards discharge of said liability. He has adduced his evidence in defence. It is accepted position, there was no subsisting liability between the complainant and accused No.1. It is fact on record, there is no agreement or any document establishing any linkage between the complainant, receiver of the goods and accused No.2 before the Trial Court. Section 138 of the Negotiable Instrument Act with the proviso therein deal with the liability of the drawer while Section 139 speaks of presumption in favour of holder. It is well settled, initial burden is on the complainant to show that the cheque had been drawn by the drawer in favour of the complainant who may be the payee or holder in due course and such came to be dishonoured on being presentation and then statutory notices were issued. The accused in this 4 case, has established that the cheques issued by him were not for any liability nor there was any existing contract or liability between him and complainant. 5. The learned J.M.F.C also gave reference to notice dated 27th July, 1998 issued by the complainant which was not issued to the accused and the said notice does not contemplate that there was any triple type agreement in between the complainant, Mr.Vipul Verma and accused. From the notice it transpired, Mr.Vipul Verma represented him as Proprietor of M/s.Lifter issued a cheque in question to the complainant towards the payment. Consequently, accused was not in the picture. There is no sterdity in the claim of the complainant about any liability against the accused. It is curious, as transpired in the evidence recorded by the learned Metropolitan Magistrate that the accused was not present when the cheque in question was handed over by Mr.Vipul Verma to the complainant, he learnt his involvement only on receipt of the statutory notice dated 28th 5 August, 1998 when the cheque was bounced second time on 19th August, 1998. 6. Mr.Sudeep Pasbola invited my attention to the Judgment of Madras High Court in the matter of G. Rukkumani v. K. Rajendran, reported in 2001 CRI.L.J.3120, the relevant observations in paragraph 7 are as under :- “Offence under Section 138 of the Negotiable Instruments Act is a statutory offence. Section 138 of the Negotiable Instruments Act excludes mens rea, by creating strict liability. It does not say that there should be a direct nexus between the person who commits the act and the offence. But, from the words, 'such person shall be deemed to have committed an offence' giving room for a deeming provision would show that not only the principal or direct offender, an indirect offender who has allowed room for perpetuation of the offence, is also liable.” These aspects are not applicable to the present case. 7. He then relied on the Judgment of Karnataka High Court reported in 1999(4) ALL MR (JOURNAL) 1, in which reference of Madras High Court was quoted. We are short of getting such citation of Madras 6 High Court to read the facts in the said case. Paragraph 4 in the said Judgment of G.N.Gurappa Reddy Vs. M/s.A.S.Finance and Investments what is recorded by the learned Single Judge is that there was Power of Attorney of his mother and his mother was due certain amount to the respondent as mentioned in the complaint. The petitioner issued cheques drawn on the Bank and which were dishonoured. Representation made was believed by the respondent who received the cheques due from the mother of the respondent. No such fiduciary relations is demonstrated between Vipul Verma or accused herein. As stated earlier, there is no contract or written agreement to believe version of the complainant the accused No.2 accepting the liability of accused No.1. In this situation, leave to appeal is rejected. (K.U.CHANDIWAL, J.)