Partly allowed

Ashwini Kumar Devapriya (Huf) v. P.S.Srinivasan and Anr.

Bombay HC24 Apr 2009APPLN/955/2009

Case brief

AI extract

What is this about?

In this criminal application, the applicant sought leave to appeal against the acquittal of the respondent accused. The applicant, who was the original complainant in a cheque bounce case, challenged the trial court's acquittal, which was based on issues regarding the Bills of Exchange, the nature of the transaction, and the sufficiency of the legal notice. The court admitted the application for l

What did the court decide?

Leave to file appeal is granted and the appeal is admitted to challenge the acquittal.

Ashwini Kumar Devapriya (Huf) Vs P.S.Srinivasan and Anr. — Cheque Dishonour | Bombay HC (2009)

¶1

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION

¶2

 CRIMINAL APPLICATION No. 955 OF 2009

¶3

 Ashwini Kumar Devapriya,(HUF). Applicant.

¶4

vs.

¶5

 P.S. Srinivasan and Anr. ..Respondents.
 Ramsinghani i/b M.H. Ramsinghani for the
 applicant.

¶6

 Mr D.P.Adsule, A.P.P. for the State.

¶7

 Mr Manish Bohra, i/b M/s A.S. Khan and Asso.for
 Respondent No.1.

¶8

CORAM: A.R. JOSHI,J.

¶9

DATED : 24TH APRIL,2009.
P.C.:-

¶10

 -----

¶11

 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).

¶12

 2. Perused the accompanying application
 including the copies of evidence, the impugned
 judgment and order and the statements of the

¶13

 accused.

¶14

 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.

¶15

 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

¶16

 ( 3 )

¶17

 accused no.2.

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 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

¶19

 ( 4 )

¶20

 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

¶21

 ( 5 )

¶22

 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

¶23

 N.I.Act. On this aspect, ratios of the

¶24

 following authorities were taken shelter of.

¶25

 1.N.A. Palkhivala and another vs.
 Madhya Pradesh Pradushan Niwaran
 Mandal, 1990 Cri.L.J. 1856

¶26

 2.H.B.Chaturvedi vs. State and
 another, the Punjab Law Reporter,
 Vol.CXLII (2006-1) 42.

¶27

 However, counter to this argument it is
 submitted on behalf of the applicant that

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 effect of the certificate under signature of
 accused no.2 is required to be construed, as he

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 has signed for and on behalf of accused no.1

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 company and as such now he cannot shirk away
 the responsibility for the affairs of the

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 ( 6 )

¶32

 company, when accused no.1 had gone in
 liquidation, accused no.3 is already
 absconding.

¶33

 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.

¶34

(A.R.JOSHI,J.)

Ashwini Kumar Devapriya (Huf) v. P.S.Srinivasan and Anr.

Case brief

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Ashwini Kumar Devapriya (Huf) v. P.S.Srinivasan and Anr.

Case brief

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