- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.940 OF 2008 APPLICATION NO.940 OF 2008 APPLICATION NO.940 OF 2008 Jitendra Vora Prop.of M/s.Satyen Polymers ...Applicant vs. 1.State of Maharashtra 2.Mrs.Bhavana Y.Shah 3.Mr.Yogesh Shah ...Respondents Mr.S.V.Marwadi i/b Mr.S.P.Narkar for the applicant Mr.Nayur Shetty i/b M/s.M.V.Kini & Co. for Respondent nos.2 and 3 Mr.Y.S.Shinde A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 1,2009 : APRIL 1,2009 : APRIL 1,2009 P.C.: P.C.: P.C.: 1. Heard learned counsel for the applicant in support of the prayer for grant of special leave to prefer an appeal under sub section 4 of section 378 of the Code of Criminal Procedure,1973. 2. By the impugned Judgment and order, the second and third respondents (accused) have been acquitted of the offence under section 138 of the Negotiable Instruments Act,1881 alleged against them. The learned counsel for the applicant has taken me through the complaint, affidavit in lieu of examination in chief and other documents on record. he pointed out that there is enough material on record to show that M/s.Shah Enterprises had taken over the liability of M/s.Shah Agencies towards the applicant. Apart from the averments made in the complaint and in Affidavit in lieu of examination in chief, he invited my attention to the letter at Exh.P-5 dated 7th - 2 - December 2000 sent by M/s.Shah Agency to the applicant. He submitted that the said letter clearly shows that the cheques were issued by the second respondent in discharge of the liability of M/s.Shah Agencies and that M/s.Shah Enterprises has undertaken to discharge the liability of M/s.Shah Agencies. He invited my attention to the notice of demand which preceded the filing of the complaint and the reply issued by M/s.Shah Enterprises to the said notice. He submitted that the defence taken by the respondents is clearly an afterthought. He submitted that the material evidence on record clearly shows that the accused were liable to discharge the liability of M/s.Shah Agencies which they had undertaken to satisfy. He submitted that as far as liability of Shah Agencies is concerned. There is no dispute about the fact that the disputed cheques were issued there is no dispute between the parties. He pointed out that the learned trial Judge has taken a completely erroneous view by observing that the partnership firm M/s. Shah Enterprises ought to have been made a party. He submitted that the main ground on which the learned trial Judge has passed an order of acquittal is totally contrary to the law expressly laid down by the Apex Court. The learned counsel for the original accused supported the impugned Judgment and order by pointing out that the findings recorded by the learned trial Judge. 3. I have perused the complaint, the affidavit in lieu of examination in chief of the applicant, his cross examination - 3 - and another material documents on record. It will be necessary to refer to the notice of demand which preceded the filing of the complaint. The notice of demand has been addressed to the second respondent in her capacity as a Proprietor of M/s.Shah Enterprises and to the third respondent in his capacity as the Power of Attorney holder of the Shah Enterprises. In paragraph 1 of the notice it is stated that the applicant is engaged in business of manufacturing and selling of synthetic Polymers/Resins and in response to orders from the 2nd respondent as proprietor of the Shah Agencies, the applicant has supplied goods from time to time to 2nd and third accused and in discharge of the liability towards the goods supplied and delivered, the cheques in disputes were issued. In the notice itself, the applicant has stated that the goods were sold and supplied to the proprietor of Shah Agencies. As stated earlier the notice is addressed to the proprietor and Constituted Attorney of M/s.Shah Enterprises. In the notice there is no specific averment that the liability of M/s.Shah Agency was taken over by M/s.Shah Enterprises. In the complaint the 2nd respondent was impleaded as the proprietor of M/s.Shah Enterprises and the 3rd respondent was impleaded as Power of Attorney holder of M/s.Shah Enterprises. 4. It will be necessary to refer to the averments made in the complaint. In paragraph 2 of the complaint, the applicant has asserted that, - 4 - "2. Accused no.1 is the Proprietor of a firm known as Shah Enterprises. The accused no.2 is Power of Attorney Holder and the signatory of the dishonoured cheque. Accused nos.1 and 2 are both in charge of and responsible to accused no.1 for the conduct of her business and day to day affairs and administration. Accused are having their office/residence at the address as shown in the cause title." 5. In paragraph 3 of the complaint what is stated by the applicant reads thus: "3. That the accused is a regular customer of the complainant. Accused had placed orders for synthetic polyster resins and the complainant sold and delivered the said goods as per the orders and specifications from time to time which were received by the accused in good condition and without demur as to their quality, specification and/or quantity. The said invoices were sent to the accused for payment. The complainant was maintaining a running account. The complainant craves leave to refer to and rely upon the said running account when produced." 6. The cause title of the complaint and averments made in the paragraph 2 show that M/s Shah Enterprises is a the proprietary concern and Mrs.Bhavana Shah is described as the - 5 - Proprietor of Shah Enterprises. In fact paragraph 2 of the affidavit in lieu of examination in chief the applicant has specifically asserted that accused no.1 conveyed to him that the accused No.1 was the proprietor of the Shah Enterprises. In paragraph 2 of the affidavit in lieu of examination in chief, the applicant has stated thus : "2. I say that accused had conveyed to me that accused no.1 was a Proprietor of Shah Enterprises. I say that however now it is understood that Shah Enterprises is a Partnership firm, of which accused no.1 is one of the partner. I say that accused no.2 is the husband of accused no.1 and Power of Attorney holder of Shah Enterprises. Both the accused were/are in charge and responsible for the business of Shah Enterprises. I know the accused. I can identify them. The said accused Nos.1 is one of the partner of Shah Agencies and accused no.2 is the Power of Attorney holder of the said Shah Agencies." 7. Thus, the case made out by the applicant in the aforesaid affidavit is that the accused No.1 was one of the partners of the Shah Enterprises. It is not asserted that accused No.2 is the partner of the said firm but what is stated is accused No.2 is the husband of accused and power of attorney holder of M/s.Shah Enterprises. In the said paragraph the applicant came out with a case that accused no.1 is one of the partner - 6 - of Shah Agencies and accused no.2 is the power of attorney of Shah Agency. No such case has been made out in the complaint. As stated earlier a case is made out in the complaint is that goods were ordered by the accused i.e. the proprietor of Shah Enterprises and constituted attorney of Shah Enterprises and the same were sold to the accused. In paragraph 34 of the affidavit in lieu of examination in chief, the applicant came out with an altogether different case by stating that on behalf of Shah Agencies accused Nos.1 and 2 continued business, placed orders and issued cheques against the liability of Shah Agencies. It is reiterated that the cheques were issued by the accused 2 as power of attorney holder of Shah Enterprises. Further improvement is made in paragraph 4 of the affidavit in lieu of examination in chief which reads thus : "4. I say that the accused along with Shah Agencies, represented by accused no.2 as the power of Attorney holder of both concerns were regular customers of my concern buying Synthetic Polyester Resin from time to time in the name of Shah Agencies. On orders received from the said Shah Agencies, I had sold, supplied and delivered Synthetic Polyester Resins to them. The said goods were received by the said Shah Agencies in good condition and without demur as their quality and quantity...." - 7 - 8. Thus, in the complaint a case is made out that the goods sold and supplied to Shah Enterprises and in the affidavit in lieu of examination in chief a case is made out that both Shah Enterprises and Shah Agencies were regular customers of the applicant and goods in question subject matter of liability were sold and supplied to M/s.Shah Agencies. It will be also necessary to refer to what is stated in paragraph 5 of the affidavit in lieu of examination in chief which reads thus : "5. The aforesaid liability has been confirmed by the letter dated 7.12.2000 of Shah Agencies. The said letter has been signed by accused no.2 on behalf of Shah Agencies. I identify the signature of accused no.2 from various correspondence that have been signed by him and also on the cheques which have been signed by him as Power of Attorney Holder of accused No.1..." 9. In paragraph 8 of the affidavit in lieu of examination in chief, a new case is made out that in part discharge of the liability of the said goods the accused had issued cheques in question. 10. Thus, in the complaint the case made out by the applicant is that the liability was of M/s.Shah Enterprises and goods were sold and supplied to Shah Enterprises. In the affidavit, the accused has come out with a case that the liability was of Shah Agency and goods were sold and supplied to the Shah - 8 - Agency. It is not the specific case of the applicant made out in the complaint that the first accused in his capacity of proprietor of Shah Enterprises and the second accused in his capacity of power of attorney of Shah Enterprises had agreed to take over and discharge the liability of M/s.Shah Agency. Reliance is placed by the applicant on the letter at Exh.P-5. Apart from the fact that the said letter is no evidence to show that the liability of Shah Agency was taken over by Shah Enterprises, as stated earlier, the said case was never made out by the applicant in the complaint. The said case made out in the complaint is that the liability is of M/s.Shah Enterprises and not of M/s. Shah Agencies. The letter dated of 7th December 2000 at Exh.P-5 is not signed by accused no. 1 who according to the applicant is the proprietor or partner of Shah Enterprises. The letter has been sent by accused No.2 in his capacity as constituted attorney of Shah Agencies. Therefore, the letter cannot be termed as a document under which the liability of Shah Agencies was specifically agreed to be taken over by the Shah Enterprises or by the accused nos.1 and 2. 11. If this is the case made out by the applicant, it is very difficult to find fault with the order of acquittal passed by the learned Magistrate. Hence, no case is made out for grant of leave. 12. It is made clear that the observations made in this order - 9 - are for limited purposes of considering the prayer for grant of leave. None of these observations shall be construed as any finding recorded by this court on the rights and liabilities of the parties. It is also made clear that the observations made in this order will not affect any other pending proceedings. JUDGE JUDGE JUDGE