* 1 * Cri.Appln.4921-4924.2010 6/1/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4922 OF 2010 [FOR LEAVE TO APPEAL] IN CRIMINAL APPEAL NO. OF 2010 (CONVERTED FROM CRI. REVN APPLICATION NO. 313 OF 2010) Jitendra Budhalal Shah .......Applicant V/S. Unidyne Energy Environment Systems Pvt.Ltd and Ors. .........Respondents ALONGWITH CRIMINAL APPLICATION NO. 4923 OF 2010 [FOR LEAVE TO APPEAL] IN CRIMINAL APPEAL NO. OF 2010 (CONVERTED FROM CRI. REVN APPLICATION NO. 314 OF 2010) Jitendra Budhalal Shah (HUF) .......Applicant V/S. Unidyne Energy Environment Systems Pvt.Ltd and Ors. .........Respondents ALONGWITH CRIMINAL APPLICATION NO. 4924 OF 2010 [FOR LEAVE TO APPEAL] IN CRIMINAL APPEAL NO. OF 2010 ( CONVERTED FROM CRI. REVN APPLICATION NO. 315 OF 2010) * 2 * Cri.Appln.4921-4924.2010 6/1/2011 Dhara Jitendra Shah .......Applicant V/S. Unidyne Energy Environment Systems Pvt.Ltd and Ors. .........Respondents ALONGWITH CRIMINAL APPLICATION NO. 4921 OF 2010 [FOR LEAVE TO APPEAL] IN CRIMINAL APPEAL NO. OF 2010 (CONVERTED FROM CRI. REVN APPLICATION NO. 312 OF 2010) Vandana Jitendra Shah .......Applicant V/S. Unidyne Energy Environment Systems Pvt.Ltd and Ors. .........Respondents * * * * * * Mr. N.R. Bubna, Advocate for the applicants. Mr. A.S. Shitole, APP for the respondents in Cri.Appln.4922.2010. Mr. Rajesh More, APP for the respondents in Cri.Appln.4921.2010 Mr. D.R. More, APP for the respondents in Cri.Appln.4923 and 4924.2010. Coram : Smt. R.P. SondurBaldota, J. 6 January, 2011. * 3 * Cri.Appln.4921-4924.2010 6/1/2011 P.C. : 1. This is a common order on the above four applications filed for leave to appeal against the judgment and order dated 9th April, 2010 by which the Sessions Court, Bombay allowed four Criminal Appeals being Criminal Appeals No. 370 of 2009, 371 of 2009, 372 of 2009, 373 of 2009 and acquitted the respondents in four proceedings filed under Section 138 Negotiable Instruments Act. Respondent no.2 had appeared in person on 2nd August, 2010 but thereafter did not choose to appear before the Court. Therefore, by way of a last chance on 14th September, 2010 the matter came to be adjourned to 4th October, 2010 with a direction to the applicants to give fresh private notice to the respondents informing them about the next date. It was further directed that on the next date if the respondents did not appear, the matter would be heard and finally disposed off in their absence. Accordingly, the respondents were served with fresh private notice. The applicant has filed affidavit of service. 2. Despite the service of advocate’s notice, the respondents are absent. * 4 * Cri.Appln.4921-4924.2010 6/1/2011 3. Mr. Bubna, the learned counsel for the applicants, submits that the learned trial judge has acquitted the respondents on the contention which had been raised by neither of the parties. He draws attention of the Court to paragraph-52 of the judgment. He submits that the Sessions Court allowed the appeals on the ground that there was no resolution passed by the Board of Directors of the respondent no.1 company permitting it to borrow money from the applicant. He submits that it has not been the case of anybody either before the trial court or before the lower appellate court, that there was no resolution by the Board of Directors permitting the respondent company to borrow money. The fact that this contention was not raised by anybody before either of the two subordinate courts can be seen from the following observations at paragraph-52 of the impugned judgment. 52. “ In the present case, the respondent is Chartered Account and share-holder of the Appellant No.1 Company. He has conducted all the transactions with the company on behalf of his family members. Still he handed over huge amount to the Company without satisfying whether the Board of Directors has passed any resolution permitting the company to borrow money from him. Of course this provision was not brought to the notice * 5 * Cri.Appln.4921-4924.2010 6/1/2011 of this Court by any body but as indicated above when the Court has to determine the existence of legally enforceable debt or other liability it is incumbent on the part of the Court to consider whether such liability or debt would be governed or regulated by any other enactment.” The Appellate Court court could not have taken up any contention on its own, without the same being raised by the respondents. 4. In the circumstances, the applications for leave to file appeal, are allowed. The appeals are admitted. sd/- [Smt. R.P. SondurBaldota, J]