1 Cri-Appln-2420 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Application No.2420 of 2010 IN Criminal Appeal No. of 2010 M/s.Sonkamal Enterprises Pvt.Ltd. ... Applicant (Orig.Complainant) v/s. 1. Rajesh Rathi & anr. ... Respondents (Res.No.1 Orig.Accused) Mr.S.V. Marwadi i/by Mr.V.V. Katti for Applicant. Mr.Bharat Rathod i/by Ms.Jahanara Sarkot for Res.No.1. Smt.A.A. Mane, APP for State. ------ CORAM : SMT.ROSHAN DALVI, J. DATED : 27th April 2011 P.C. : 1. This application is filed for leave to appeal against the order of acquittal passed by the learned Metropolitan Magistrate, 10th Court, Andheri, Mumbai on 30th March 2010. The accused has been acquitted under Section 255(1) of the Criminal Procedure Code, on the ground that the accused has not signed the cheque which came to be dishonoured. The accused is the proprietor of the proprietary firm which is shown to have issued the cheque. The cheque is, however, 2 Cri-Appln-2420 not signed by the proprietor of the proprietary firm i.e. the accused. It is signed by his father who was not the proprietor. This could have been signed only under a specific authority given by the sole proprietor to the bankers for honouring the cheques. The banker has been examined. The banker has given oral evidence of the maintenance of the accounts by the proprietary concern of the accused and the mandate given by him to his father to sign the cheques as authorised signatory of the proprietary concern. The mandate has to be in writing. It cannot be given orally. It cannot be acted upon by the banker orally. The written mandate is not produced. 2. Mr.Marwadi on behalf of the Applicant contends that under a written mandate, if the authorised signatory has signed the cheque, the proprietor of the proprietary concern would be held liable. That aspect may be true. However, from signing without showing the authority cannot make the person who has not signed liable upon the dishonour of the cheque in view of the initial part of Section 138 of the Negotiable Instruments Act which runs thus: "Where any cheque drawn by a person on an account maintained by him ......" 3. The Advocate on behalf of Respondent No.1 states that the learned Magistrate has not considered the entire 3 Cri-Appln-2420 evidence and given a judgment on all the aspects. He, therefore, states that the matter be remanded for consideration on all the aspects. Mr.Marwadi states that all the aspects may be considered, including the aspect about the written mandate. Hence the order of the learned Magistrate dated 30th March 2010 is at present, by consent of both the Advocates, set aside and the complaint is remanded back to the said Court for recording of further evidence on the written mandate followed by the cross- examination of the witness who would produce the written mandate and for consideration of the entire evidence. 4. Leave in this appeal cannot be granted and the appeal is disposed of in terms of the above order. (SMT.ROSHAN DALVI, J.)