IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 955 OF 2009 Ashwini Kumar Devapriya,(HUF). Applicant. vs. P.S. Srinivasan and Anr. ..Respondents. Ramsinghani i/b M.H. Ramsinghani for the applicant. Mr D.P.Adsule, A.P.P. for the State. Mr Manish Bohra, i/b M/s A.S. Khan and Asso.for Respondent No.1. CORAM: CORAM: CORAM: A.R. JOSHI,J. A.R. JOSHI,J. A.R. JOSHI,J. DATED : 24TH APRIL,2009. DATED : 24TH APRIL,2009. DATED : 24TH APRIL,2009. P.C.:- P.C.:- P.C.:- ----- 1. Heard rival submissions for some time. It is the application for leave preferred by the original complainant to file appeal against the acquittal of respondent No.1 (original accused) in the matter of offence under Section 138 of the Negotiable Instruments Act, 1881 ("the N.I.Act" for short). 2. Perused the accompanying application including the copies of evidence, the impugned judgment and order and the statements of the accused. 3. It appears that at the instance of the accused-company, one M/s Vin Sai Straps Private Limited, sold and supplied MG Craft Paper to the accused-company as per the delivery challans. The said M/s Vin Sai Straps Pvt.Ltd drew three Bills of Exchange on the accused company favouring the complainant payable after 90 days. Accused company made payments towards the discounting charges on 25.6.1997. Accused company issued three cheques, total valued at Rs. 5,00,000/- in favour of the applicant HUF. The said cheques were dishonoured and consequently after issuance of demand notice against the original accused no.1, which was subsequently went in liquidation, crimial complaint came to be lodged for the offence under Sections 138 and 141 of the N.I.Act. 4. After recording of the evidence and hearing the parties and recording of the statements of the accused Nos.1 and 2, accused no.2 was acquitted, as by that time accused no.3 was absconding and accused no.1 company went in liquidation. As such, the only contesting respondent no.1 is the original ( 3 ) accused no.2. 5. It appears that during the trial three witnesses were examined. First one is the authorized representative, second one coparcener and third one Karta of the complainant HUF. It appears that mainly on three counts the trial Magistrate disposed of the case of the complainant and acquitted accused No.2. Firstly, on the ground that name of the complainant is not appearing in the Bills of exchange. On perusal of such Bills of exchange the name of M/s Ashwini Kumar Devapriya (HUF) to whom the debt was to pay is appearing and as such it appears that the said ground was erroneously held as available by the Magistrate. Second ground is that allegedly certificate produced by the complainant company speaks some thing like a short term loan from others and which was apparently the loan taken by accused no.1 company from the complainant HUF. Opining that the said certificate cannot be linked with the transaction under consideration as to drawing of Bills of ( 4 ) exhcnage and then giving of three cheques, the Trial Magistrate acquitted the accused and also mentioned that such certificate was not proved as required by law. On this count, it is apparent that said certificate in original was produced during the trial and it bears signature of respondent no.1 (accused no.2) and also apparently there are no other business transactions than the transaction under the Bills of Exchange and issuance of three cheques which were dishonoured. Thirdly, it was observed by the Trial Magistrate that notice was required to have been given individually as such for not giving individual notice to accused no.2, it was also held as mitigating circumstance to the case of the complainant. On this last count, attention of this Court is drawn to the pending matter before the Hon’ble Apex Court concerning the challenge to the order of this Court in another proceeding as to the involvement of the same issue whether individual notice is must in case of dishonour of cheque when the notice to the company on whose behalf cheque is issued, is already ( 5 ) served. In the opinion of this Court, there is a valid issue that the matter is required to be heard in the appeal before this Court. Lastly, during the arguments, learned Advocate for respondent no.1 submitted that accused no.2 was only the Chairman and not having any day to day business understanding and as not being the signatory to the dishonoured cheques cannot be held responsible for the offence under the N.I.Act. On this aspect, ratios of the following authorities were taken shelter of. 1.N.A. Palkhivala and another vs. Madhya Pradesh Pradushan Niwaran Mandal, 1990 Cri.L.J. 1856 2.H.B.Chaturvedi vs. State and another, the Punjab Law Reporter, Vol.CXLII (2006-1) 42. However, counter to this argument it is submitted on behalf of the applicant that effect of the certificate under signature of accused no.2 is required to be construed, as he has signed for and on behalf of accused no.1 company and as such now he cannot shirk away the responsibility for the affairs of the ( 6 ) company, when accused no.1 had gone in liquidation, accused no.3 is already absconding. 6. All the same, as mentioned above, there is a ground to deal with this matter in the appeal and as such leave is granted. Application for leave is allowed. Appeal is admitted. (A.R.JOSHI,J.) (A.R.JOSHI,J.) (A.R.JOSHI,J.)