1 Appln.: 1037/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1037 OF 2010 M/s Laxmi Narayan Communication .... Applicant Vs. Shri Bajirao Chandrakant Patil & Anr. .... Respondents Mr. Prakash Naik, Advocate for applicant. Mr. Deepak Deshmukh, Advocate for respondent no.1. Mrs. M.R. Tidke, APP for State Coram : Smt. R.P.SondurBaldota, J. Date : 6th January, 2011 P.C. 1. This Criminal Application is for condonation of delay of 36 days in filing of the application seeking leave to file an appeal against the judgment and order dated 2nd November 2009 passed by Judicial Magistrate, First Class, 8th Court, Kolhapur acquitting the respondent of the charges under Section 138 Negotiable Instruments Act. 2. Heard both the counsel. Perused the application. For the reasons stated therein, the application is allowed. The delay is condoned. ( Smt. R.P. SondurBaldota, J.) 2 Appln.: 1037/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. OF 2010 IN CRIMINAL APPLICATION NO.1037 OF 2010 M/s Laxmi Narayan Communication .... Applicant Vs. Shri Bajirao Chandrakant Patil & Anr. .... Respondents Mr. Prakash Naik, Advocate for applicant. Mr. Deepak Deshmukh, Advocate for respondent no.1. Mrs. M.R. Tidke, APP for State Coram : Smt. R.P.SondurBaldota, J. Date : 6th January, 2011 P.C. 1. By consent of parties, the application is taken on the board for admission. Both the counsel agree that the application be heard finally at the stage of admission. Perused the record. 2. This application is filed seeking leave to file appeal challenging the judgment and order dated 2nd November 2009 passed by the Judicial Magistrate, First Class, 8th Court, Kolhapur in S.C. Case No.2320 of 2008. The brief facts of the case are as under : The applicant is a dealer of Reliance Infocom Company for installation of P.C.O.. Respondent no.1 was working with him as an employee to provide service to the customers. In the year 2007, the respondent has started his independent business. He used to purchase the PCOs from the applicant and 3 Appln.: 1037/2010 install the same for his own customers. In the course of his business, he owed a sum of Rs.1,05,000/- to the applicant towards the connection deposit of coin box and prepaid vouchers. On 24th October 2007, he issued three cheques in favour of the applicant for Rs.34,485/- each. The cheques when presented for encashment by the applicant, were dishonoured for the reasons “insufficient funds”. Then the applicant sent three separate notices to the respondent demanding the amount under the cheques. The respondent replied the said notice taking defence that the cheques issued were not towards legally enforceable debt. 3. When the applicant prosecuted the respondent for the offence under Section 138 Negotiable Instruments Act, the respondent had taken the same defence that the cheques issued were not towards any legally enforceable debt. On appreciation of the evidence before it, the trial Court accepted the contention and held that the three cheques issued were not towards legally enforceable liability. The reason, therefore has been extensively discussed at paragraphs 10 to 32 of the judgment. The trial Court found firstly that the applicant as an agent of the Reliance Infocom could not have delegated his agency further to the respondent, such agency being prohibited by Section 190 of the Indian Contract Act. Therefore any amount due by the respondent to the applicant by way of such agency cannot be legally enforceable debt. The trial Court also noticed that the statutory notice issued by the applicant refers to agreement dated 1st May 2007 between the applicant and respondent and the contention in the notice that the cheques were issued towards the liability arising under the agreement. The applicant, not only did not produce agreement dated 1st May 2007 but made not even a mention 4 Appln.: 1037/2010 of it in the complaint and his deposition. The trial Court, therefore held that most important evidence in the case has been concealed by the applicant has not been produced by the complainant. The trial Court accepted the explanation offered by the respondent for the cheques in the hands of the applicant. It was the defence of the respondent that he was working with the applicant, for a period of two years from 2005 to 2007. As the applicant had failed to pay him his commission as well as expenses incurred by him during the period of service, the respondent left the job. Thereafter the applicant, claiming that the respondent owed him money, had taken away the motor cycle of the respondent along with the bag of the respondent containing some blank cheques and also important documents. The respondent had lodged complaint to the Police regarding theft of the motor cycle. The trial Court had accepted that the cheques issued had gone into the hands of the complainant, along with the motor cycle. The view taken by the trial Court as well as the defence being a possible view of defence with the same is called for at the hands of this Court. Thus the application for leave to file an appeal is dismissed. Office to number the Criminal application for statistical purposes. ( Smt. R.P. SondurBaldota, J.)