1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1515 OF 2008 WITH CRIMINAL APPEAL ST. NO. 313 OF 2008 Deogiri Nagari Sahakari Bank Ltd. ...Applicant VERSUS The State of Maharashtra and anr. ...Respondents ..... Smt. Maya Jamdade h/f Preeti Diggikar, advocate for applicant Shri B.J.Sonwane, A.P.P. for respondent no.1 Shri L.D.Vakil, advocate for respondent no.2. ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 5 th August, 2010 PER COURT : 1 Heard Smt. Maya Jamdade h/f Preeti Diggikar, advocate for applicant, Shri B.J.Sonwane, A.P.P. for respondent no.1 and Shri L.D.Vakil, advocate for respondent no.2. 2 This is an application preferred by the applicant seeking leave to file appeal against the judgment and order of acquittal dated 26.3.2008, rendered by learned Judicial Magistrate, First Class, Aurangabad in S.C.C. 2 No. 1836 of 2004 acquitting the respondent (original accused) for the offence under Section 138 of the Negotiable Instruments Act, 1881. 3 I have perused the impugned judgment and order of acquittal dated 26.3.2008 with the assistance of learned counsel for the parties. 4 In nut shell, the case of the complainant is that the complainant is a Banking Institution and one K.M.Enterprises availed loan of Rs. 70,00,000/- from it and accused herein namely Garware Synthetics Ltd. (hereinafter referred to as “GSL” for short) had taken the guarantee of the said loan. It is also alleged that the accused herein issued cheque no. 664444 dated 15.12.2003 for Rs.1,74,796/- drawn on Sangli Urban Co-op. Bank, Branch Fort, Mumbai towards the part repayment of the said loan. Accordingly, said cheque was presented for encashment purpose. However, same was dishonoured and returned unpaid with the endorsement, “refer to drawer”. 5 Thereafter it is alleged that the complainant sent notice to the accused on 19.2.2004 by R.P.A.D. It is also alleged that despite receipt of said notice, accused failed to comply with the said notice within the prescribed period. Hence, the complainant filed the complaint before the learned Judicial Magistrate, First Class, 5 th Court, Aurangabad against the said K.M.Enterprises and accused herein. 6 Process was issued against both the accused under Section 3 138 of the Negotiable Instruments Act, 1881. However, subsequently name of the accused namely K.M.Enterprises came to be deleted at the instance of the complainant and complaint proceeded against the present accused GSL/respondent no.2 herein and Mr. Nihal Garware, the representative of the accused caused appearance therein. Plea of Mr. Nihal Garware was recorded and he pleaded not guilty and claimed to be tried. 7 The complainant led the oral and the documentary evidence and examined its officer namely Pravin as CW1, as well as one CW2 Nitin. The accused did not examine himself, but put forth his defence through his statement recorded under Section 313 of the Code of Criminal Procedure and disputed the maintainability of the complaint on the ground that the signatories to the said cheque are not made co-accused and also on the ground that Mr. Nihal Garware is neither signatory to the cheque nor he has been shown as incharge and responsible for the conduct of business of the said company at the relevant time, as well as he disputed the service of notice and strict compliance of Section 138 of the Negotiable Instruments Act, 1881. After scrutinizing and appreciating the evidence on record, learned Trial Judge did not find the accused guilty and acquitted the said accused for the offence under Section 138 of the Negotiable Instruments Act, 1881. Being aggrieved and dissatisfied by the said judgment and order of acquittal, the complainant has preferred the present application seeking leave to file appeal against the same. 4 8 Learned counsel for the applicant submitted that the accused herein issued the cheque in the capacity of guarantor and ingredients of Section 138 of the Negotiable Instruments Act, 1881 have been complied with by the complainant, but the learned trial Judge took erroneous view and acquitted the accused. Learned counsel for the applicant also submits that notice was sent to the accused by R.P.A.D., and therefore, presumption should have been raised under Section 27 of the General Clauses Act in respect of service upon the accused and the learned trial Judge went on a wrong track in that respect. Accordingly, learned counsel for the applicant submitted that the judgment and order of acquittal delivered by the trial Court is unsustainable, and therefore, leave is required to be granted to the applicant to file appeal against the same. 9 Learned counsel for the respondent/accused submitted that the complaint filed by the complainant is hardly containing three paragraphs and there is no averment in the said complaint that Mr. Nihal Garware was incharge and responsible for the conduct of business of the said company at the relevant time. It is also canvassed that the cheque in question bears the signatures of two persons and they have not been made parties in the present complaint. It is also pointed out by learned counsel for the respondent that CW1 Pravin admitted in the cross- examination that the cheque in question does not bear the signature of Mr. Nihal Garware, and hence, notice has not been sent to the said signatory and further admitted that he did not verify whether the notice was served upon the accused company. 5 10 Learned counsel for the respondent also invited my attention to the fact that the complainant had filed proceedings against K.M.Enterprises, as well as the accused herein under Section 101 of the Cooperative Societies Act, but same was dismissed, as well as the Revision preferred by the applicant against the said order under Section 154 of the Cooperative Societies Act was also dismissed, and therefore, it is canvassed that when the borrower itself is not liable for the alleged loan, then question arises how the guarantor i.e. accused herein is liable for the alleged liability. In the circumstances, learned counsel for the respondent submitted that present application bears no substance and same is devoid of any merits and same be rejected. 11 After considering the rival submissions advanced by learned counsel for the parties, at the out set, admittedly the present complaint has been filed against the Garware Synthetics Limited, a company, through its authorised signatory Director Mr. Nihal Garware. However, on perusal of contents of the said complaint, it is seen that there is absolutely no averment that Mr. Nihal Garware, alleged authorised signatory was incharge and responsible for the conduct of business of the said company at the relevant time, and therefore, it is crystal clear that there is non- compliance of the very provision of Section 141 of the Negotiable Instruments Act, 1881, and the observations made by learned trial Judge in that respect in the impugned judgment cannot be faulted with. 12 Moreover, it is also observed in the said judgment that the 6 complainant’s witness CW1 Pravin stated in the cross-examination that there is no documentary evidence that notice Exh.47 was sent to accused no.2 GSL, as well as he stated that he has not verified whether indeed accused herein i.e. GSL was served with the notice or not, as well as the notice was not sent to the signatory of the cheque in question. Moreover, as rightly pointed out by the learned counsel for the respondent, the cheque in question does not bear the signature of Mr. Nihal Garware, but it bears the signature of other two signatories, who have not been made parties to the present complaint. 13 In the light of the afore said facts, the view adopted by the learned trial Judge, after analysing the evidence on record while acquitting the accused is a possible view to be adopted and it does not appear to be perverse, as well as reasoning given therefor by the learned trial Judge also appears to be proper and same cannot be faulted with. Hence, present application bears no substance and same is devoid of any merits and same deserves to be rejected. 14 In the result, present application being sans merits stands dismissed. Leave to file appeal is refused. Criminal Appeal under Stamp No. 313 of 2008 stands dismissed. Present application stands disposed of accordingly. (SHRIHARI P. DAVARE), JUDGE. dbm/crap1515.08