1 Appln4042-43-10 ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4042 OF 2010 WITH CRIMINAL APPLICATION NO.4043 OF 2010 M/s.Paper Deal A Partnership Firm Through its partner Tushar Shankar Andhrutkar .. Applicants Vs. M/s.Saikrupa Silk Mills Pvt.Ltd. Through its Director Manjuben Rameshkumar Singhal and Ors. .. Respondents Mr.Tushar Sonawane for the applicants Mr.J.P.Kharge, A.P.P. for the respondents CORAM: K.K. TATED, J. DATE: 2nd FEBRUARY, 2011 P.C. 1. Heard the learned counsel for the parties. 2. These two applications can be disposed by common order. 3. The application No.4042 of 2010 for leave to appeal arise out of the common judgment and order dated 23rd June, 2010 passed by the learned Sessions Judge, Nasik in Criminal Appeal No.178 of 2008 and Criminal Revision Application No.563 of 2008 both arising out of judgment and order dated 7th July, 2008 passed by the learned Magistrate F.C. Nasik in S.C.C.No.1005 of 2005. The appeal No.178 of 2008 was filed by the 2 Appln4042-43-10 original accused challenging their conviction and sentence u/s. 138 of the Negotiable Instrument Act and the Revision Application No.563 of 2008 was filed by Applicant/Org.Complainant for enhancement of the sentence/compensation awarded by the learned J.M.F.C. 4. The application No.4043 of 2010 for leave to appeal arise out of the common judgment and order dated 23rd June, 2010 passed by the learned Sessions Judge Nasik in Criminal Appeal No.179 of 2008 and Criminal Revision Application No.562 of 2008 both arising out of the judgment and order dated 7th July 2008 passed by the learned Magistrate F.C. Nasik in S.C.C. No.1006 of 2005. The appeal No.179 of 2008 was filed by the original accused challenging their conviction and sentence u/s.138 of the Negotiable Instrument Act and the Revision Application No.562 of 2008 was filed by Applicant/Org.Complainant for enhancement of the sentence/compensation awarded by the learned J.M.F.C. 5. The Criminal Appeal Nos.178 of 2008 and 179 of 2008 were filed by the accused against their conviction and sentence for the offence under section 138 of the Negotiable Instruments Act. The learned Sessions Judge found that all the ingredients of the offence under section 138 of the Negotiable Instruments Act were proved and established against accused no.2. Accused no.2 as director of the Company had signed the cheques and he was looking after day to day affairs of the company and the cheques were issued by him for the amount due to the complainant 3 Appln4042-43-10 from the accused no.1 Company. Hence, the learned Sessions Judge maintained the conviction and sentence passed against the accused no.2 by the trial court. 6. As regards accused no.3, the learned Sessions Judge found that she was director of the company. Accused no.3 did not look after the day to day affairs of the company and also did not sign the cheques which were issued by the accused no.2 and had bounced. Therefore, the learned Sessions Judge held that she could not be convicted and sentenced for the offence under section 138 of the Negotiable Instruments Act simply because she happened to be director of the company accused no.1. Hence she was acquitted of the offence under section 138 of the Negotiable Instruments Act. 7. The applicant original complainant being aggrieved by the orders of the learned J.M.F.C. filed criminal revision application no.563 of 2008 in S.C.C.No.1005 of 2005 and Criminal Revision Application No.562 of 2008 in S.C.C.No.1006 of 2005 for enhancement of sentence. Both these revision applications were dismissed by the learned Sessions Judge. 8. The complainant being aggrieved by the order of the learned Sessions Judge acquitting accused no.3 and rejecting their criminal revision application for enhancement of sentence filed the applications for leave to appeal against the acquittal of the accused no.3 and for enhancement of sentence against accused nos.2 and 3. 4 Appln4042-43-10 9. The learned counsel appearing on behalf of applicant contended that the complainants alleged in para 3 of the complaint that the accused used to purchase craft paper from the complainant from time to time and failed to make payment. According to him, the word accused used in the “ ” complaint denotes both the accused nos.2 and 3. It is pertinent to note that the complainant in their complaint did not specify what the accused no.3 was doing in day to day affairs of the accused no.1 company. There is no evidence on record to that effect. The cheques which bounced did not bear the signature of accused no.3 and hence, there is nothing on record against accused no.3 except that she was director at the time the cheques were issued by the accused no.2. The learned Sessions Judge is right in holding that the accused no.3 could not be convicted under section 138 of the Negotiable Instruments Act simply because she was director of the company. There is no infirmity in the said finding of the learned Sessions Judge and hence, the leave sought by the complainant to appeal against acquittal of the accused no.3 cannot be granted. In similar way, the application filed by complainant in Criminal Revision Application No.563 of 2008 and 562 of 2008 cannot be granted because the learned counsel for the applicant is unable to point out from the material on record that the sentence awarded by the learned Magistrate and confirmed by the Session Judge against accused no.2 is neither according to law nor inadequate in law. 5 Appln4042-43-10 10. The learned counsel appearing on behalf of applicant further submits that the learned Sessions Judge failed to consider the Apex Court Judgment before them at the time of deciding the matter. 11. Considering the reasons given by the learned Sessions Judge at the time of considering the Apex Court judgment, I do not find any substance in the submission made by the learned counsel appearing on behalf of applicant. It is to be noted that even the learned Magistrate in para 13 specifically recorded that the applicant failed to produce any evidence on record to show that the accused no.3 was taking part in day to day business of the Company. In similar way, the learned Sessions Judge also recorded finding at the time of deciding point no.3. 12. Considering the above mentioned facts and circumstances, I do not find any substance in recording leave to the applicant original complainant under section 378(4) of the Criminal Procedure Code for challenging the judgment and order dated 23.6.10 passed by the learned Sessions Judge, Nasik. 13. Both the applications are dismissed. (K.K. TATED, J.)