1 Cri-A-1350-1351-09.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMNAL APPLICATION NO. 1350 OF 2009 WITH CRIMINAL APPLICATION NO. 1351 OF 2009 CRI. APPLN.NO. 1350 OF 2009 Rajmata Urban Co-op.Bank Ltd. ... Applicant vs. Sou. Pushpa Pandurang Dudhal & Anr. ... Respondents CRIMINAL APPLICATION NO. 1351 OF 2009 Rajmata Urban Co-op. Bank Ltd. .. Applicant vs. Kamalpasha Nabab Mullal & Anr. .. Respondents Mr. Vishwanath Talkute, Advocate, for the applicant. Mr. S.M.Oak, i/b. Mr. Sagar Joshi, Advocate for respondent No.1 (in Appln.No. 1350/2009). CORAM: J.H.BHATIA,J. DATE : 23rd September, 2011. P.C. 1. Heard the learned Counsel for the applicant, who is original complainant and the learned Counsel for the respondent No.1 in Criminal Application No.1350/2009. Inspite of service, none appears for respondent No.1 in the second application. 2 Cri-A-1350-1351-09.odt 2. These two applications are filed by the complainant seeking leave to prefer against the order of acquittal for the offence under Section 138 of the Negotiable Instruments Act. The complainant is a Co-operative Bank and, according to the complainant, the respondents in these two matters had taken loan to be repaid in instalments. As they defaulted in making payment of instalments, they issued cheques for repayment of the amount. The cheques were dishonoured and inspite of service of statutory notice, payment was not made within the stipulated period. This resulted into filing complaint under Section 138 of Negotiable Instruments Act. The complaints were filed on behalf of the complainant by its then Manager , Balbhim Dattatraya, Shinde. 3. The trial Court acquitted the accused in both the matters on two grounds. Firstly, no evidence was led to show that the Board of Directors or the Managing Committee of the complainant Bank had passed a resolution authorsing Balbhim Shinde to file complaint on its behalf and therefore the complaints were filed by unauthorised persons. The second ground was that even though the documents, including cheque, the memo from the Banks showing bouncing of the cheque for want of sufficient funds and the notice allegedly issued to the accused are produced on record, on behalf of prosecution, Balbhim Shinde was not 3 Cri-A-1350-1351-09.odt examined. To prove these documents, one Sudhesh Laxmanrao Thorbole, who was acting as Manager of the Bank at the time of leading evidence, was examined. He was, admittedly, not even in service of the Bank at the time of filing the complaint and he had no personal knowledge about the case. In view of this, the trial Court held that no evidence was led to prove that the cheques were issued by the accused, that the cheques were presented to the Bank for encashment, that the cheques were dishonoured for insufficient funds and that the notices were actually issued and served on the accused before filing the complaints. In fact, these are cases with no evidence at all. 4. The learned Counsel for the applicant contends that there was a resolution passed by the Board of Directors of the complainant Bank authorising Balbhim Shinde to take action in respect of all the cases of general authority as well as to take action under Sec. 138 of Negotiable Instruments Act against defaulters and therefore this general authority to file cases under Sec. 138 against all the concerned borrowers, who had committed the offence and hence authority to file complaint against particular individual was not required. Assuming that this contention of the learned Counsel for the applicant is correct, fact remains that the complainant had failed to lead evidence to prove its case. Therefore, it is difficult to find fault with the order of acquittal. In view of the facts and 4 Cri-A-1350-1351-09.odt circumstances, I find no valid reason to grant leave to prefer appeal. 5. Therefore, leave to prefer appeal is refused and the Applications stand dismissed. (J.H.BHATIA,J.)