1 (14) Appln 367/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Amk CRIMINAL APPLICATION NO. 367 OF 2010 Kamal Pravinbhai Shah .. Applicant Vs. Mukesh Gokal & Anr. .. Respondents Mr. Bharat Vaishnava i/b Bharat Vaishnava & Co. for the Applicant. Mr. Robin Jaisinghani a/w Basant Tilokani and Mr. Pritesh Patel i/b M/s. Jhangiani Narula & Associates for Respondent No.1. Ms. U. V. Kejriwal APP for Respondent No.2. CORAM : J. H. BHATIA, J. Date : 10th March, 2011 P.C. 1. Heard the learned Counsel for the Applicant and the learned Counsel for the accused-Respondent. 2. This application is filed for leave to prefer Appeal against the order of acquittal passed by the learned Magistrate under Section 256 of the Code of Criminal Procedure as the Complainant was absent. 3. Facts in brief are that the accused had allegedly issued 2 cheques of Rs.2,00,000/- and Rs. 3,00,000/- respectively in September, 1997 in favour of of M/s. Deepin Bleaching Pvt. Ltd., a private limited company. The said cheques were presented for encashment 2 (14) Appln 367/10 by the Complainant but the cheques were dishonoured. In spite of notice issued by the Complainant, the accused failed to make payment. Therefore the complaint was filed in October, 1997. In due course process was issued and the matter was pending before the trial Court. It appears that on 07.08.2003 affidavit in lieu of examination-in-chief was filed by the Applicant Kamal Pravinbhai Shah, who claims to be the Manager of M/s. Deepin Bleaching Pvt. Ltd. After that on certain dates the matter could not be taken up because the Court was vacant. On 01.12.2004, 10.02.2005, 01.04.2005, 06.08.2005, 19.09.2005, 26.09.2005 and lastly on 04.10.2005 the Complainant and his Advocate were absent. The accused had also submitted an application before the learned Magistrate that the Complainant was consistently absent and therefore the complaint should be dismissed under Section 256 of the Code of Criminal Procedure. In spite of that the matter was posted on the next date i.e. On 04.10.2005. On that date also none appeared for the Complainant and finally the complaint was dismissed under Section 256 of the Code of Criminal Procedure and the accused was acquitted. The present application for leave to prefer an Appeal along with application for condoning of delay came to be filed on 05.10.2009 i.e. almost 4 years after the dismissal of complaint. Anyhow the 3 (14) Appln 367/10 application for condonation of delay was allowed and the delay was condoned by this Court. 4. In para 10 of this application it is contended that the complainant was present before the Court while the accused was not present but the case was adjourned to 01.12.2004 as the Court was vacant. It is also contended that the complainant’s Advocate attending the matter had told him that as and when the matter would come up for further proceeding, he would be called and that since Affidavit of examination-in-chief was filed, it would take long time before the matter would finally come up. On perusal of roznama, it appears that on 23.09.2004 the Complainant and his Advocate were absent. Thereafter on 01.12.2004 and on every date thereafter the Complainant and his Advocate were absent. It is not correctly stated in the application that on 01.12.2004 and thereafter the Advocates for the Complainant were attending the Court. In fact none of them was present from 23.09.2004 till the complaint was dismissed. There is no plausible explanation why no Advocate was appearing for the Complainant for more than 1 years, even if the Complainant was, as alleged by him, informed that as and when required, he would be called. 4 (14) Appln 367/10 5. On perusal of the complaint, it appears that the payee of the cheque was M/s. Deepin Bleaching Pvt. Ltd. Company. Section 142 (a) provides that no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. As the cheque was dishonoured, the complaint could have been filed by M/s. Deepin Bleaching Pvt. Ltd. Who was payee. Of course as the company incorporated under Company law has to act through same human being, the complaint should have been filed by the Complainant but through some person duly authorized for the same. In the present case the title of the complaint shows that the Kamal Pravinbhai Shah was the complainant in the capacity of Manager of M/s. Deepin Bleaching Pvt. Ltd. Firstly the complaint could not be filed by the Applicant Kamal Pravinbhai Shah as the complaint could have been filed by M/s. Deepin Bleaching Pvt. Ltd. through its Manager Kamal Pravinbhai Shah and not otherwise. Secondly in the complaint nowhere it is mentioned that the company had by passing any resolution etc. authorized Kamal Pravinbhai Shah to file the complaint under Section 138. Thus neither the complaint is filed by the payee of the cheque nor it is filed by a person duly authorized. It is material to note that the 5 (14) Appln 367/10 present Application and Appeal are also filed by said Kamal Pravinbhai Shah and not by the Company. The learned Counsel for the accused-Respondent contended that in view of this ground itself, the complaint is liable to be dismissed and in view of these circumstances, if now the leave is granted to prefer the Appeal and even if the Appeal is allowed and the complaint is restored to file, final result will be dismissal of the complaint on this legal ground. There is substance in his contention. 6. Taking into consideration all the facts and circumstances, it appears that the complaint was not filed by the competent person. Secondly the Complainant and Advocate were absent for more than 1 year without explanation. The reasons given in para 10 of the present application also do not appear to be correct. Therefore, no purpose of justice would be served by granting the leave. 7. For the aforesaid reasons, the application stands dismissed. ( J. H. BHATIA, J.)