IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELATE JURISDICTION CRIMINAL APPLICATION NO. 1120 OF 2008 M/s Kubsis Enterprises .. Applicant Versus State of Maharashtra and others .. Respondents Mr. Kapil P. Shetye, for the Applicant Mr. Tanvir Shaikh, for Respondents 2 and 3 Mr. A. S. Shitole, AGP, for the Respondent-State CORAM: MRS. MRIDULA BHATKAR, J. DATED: 13 April, 2009 P. C. 1. This is an application for leave to Appeal under section 378 (4) of Cr. P. C. preferred by the Applicant/Complainant. 2. The accused had issued a cheque of Rs.1,16,000/- towards payment of purchase of goods from the complainant- proprietary concern and the said cheque was dishonoured with endorsement “referred to drawer”. The complainant, thereafter served notice of demand and complied all the requirement for prosecution under Section 138 of the Negotiable Instruments Act against the accused. After filing of the Complaint, the prosecution was launched against the accused which resulted in acquittal of the accused, on the point that the complaint was filed by the power of attorney holder of the owner of the proprietary concerned. Evidence was also tendered by the power of attorney holders. 3. Learned Counsel appearing for the applicant/complainant relied on para-2 of the judgment in which the learned Trial Judge has held all findings in respect of proof of the ingredients of section 138 of NI Act in favour of the complainant. He has further pointed out that the complaint was dismissed and the accused were acquitted on hyper technical point. So, the leave be granted or alternatively the matter be remanded to the trial court. 4. Learned Counsel appearing for the respondents opposed the leave to appeal. 5. It is settled legal position that the evidence of the complainant cannot be replaced by or through the power of attorney holder. It is necessary for the owner of the proprietary concern to step in the box and depose the facts. Unless, the evidence of original Complainant or the owner of the proprietary concern is tendered on the point of enforceable liability, the procedural compliance under section 138 of NI Act, these facts cannot be said to be proved. These facts cannot be proved through the suggestion to the power of attorney holders in the cross examination and its denial in the cross examination. The learned Trial Judge has rightly dismissed the complaint on this settled position of law. No need to disturb the findings. Hence, leave to appeal stands rejected. ( MRIDULA BHATKAR, J.) jpc/-