CRIMINAL Sanjay Rukhana v. M/s.Mehul Enterprises & Anr.

Mr.Anilkukar Joshi for Respondent No.2 Mr.Y.S.Shinde A.P.P. for State A.S.OKA,J. CORAM: A.S.OKA,J. CORAM: A.S.OKA,J. CORAM: : MARCH 26,2009 DATE : MARCH 26,2009 DATEDATE : MARCH 26,2009 P.C.: P.C.: P.C.:

#1. The submissions of the learned counsel for the applicant were heard on 20th March 2009. The application was adjourned till today to enable the counsel for the applicant to make further submissions confined only to the decision of this court relied upon by the learned counsel for the second respondent. None appeared for the applicant in the morning sessions, hence the application was kept back till afternoon. None appears for the applicant in the afternoon session.

#2. This is an application under sub section 4 of section 378 of the Code of Criminal Procedure,1973. The applicant filed a complaint alleging commission of offence under section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as the said Act).

#3. After considering the oral and documentary evidence on record, the learned Judge found that even according to the - 2 - complainant, at the instance of M/s.Shree Hari Om Trading Corporation a sum of Rs.15,00,000/- was paid to the Food Corporation of India. The said amount was paid by the applicant on the request made by the 2nd accused. The case is that the accused issued a cheque in dispute in discharge of the said liability. After perusing the cross examination of the P.W.no.1, the learned Judge recorded a finding that the liability subject matter of the cheque is in fact the liability of the third party M/s.Shree Hari Om Trading Corporation and not of the accused. The second aspect noted by the learned trial Judge is that the bank on which the cheque was drawn was closed under the orders of the Reserve Bank of India. The third aspect considered by the learned trial Judge against the applicant is that the affidavit in lieu of examination in chief was not in accordance with section 297 of the Code of Criminal Procedure,1973 in as much as there was no proper verification of the affidavit.

#4. The learned counsel for the applicant has placed reliance on the decision of Andhra Pradesh High Court in Case of K. Mainkyam Vs.P.Parvathi and another [2005 All M.R. (Cri.) Journal page 130]. He submitted that in view of the decision of the Andhra Pradesh High Court, the complaint was maintainable though the cheque was issued in discharge of the liability of third party. The learned counsel for the first and second respondents relied upon the decision of this court - 3 - in case of Hiten Sagar and another vs. IMC Ltd and another in Criminal Application No.3855 of 1999 dated 14th June 2001. In the said decision, this court held that the liability within the meaning of section 138 of the said Act is the liability of the drawer of the cheque and not the liability of any third party unless the drawer of the cheque had entered into any agreement to take over the liability.

#5. Perusal of the complaint and the evidence shows that that the existence of any such agreement has not been pleaded. The cross examination of the P.W.1 reflects the admitted position that the liability was of the third party i.e. Shree Hari Om Trading Corporation. In view of the law laid down in case of Hiten Sagar and another (supra), reliance placed by the learned Counsel on the decision of Andhra Pradesh High Court cannot be accepted.

#6. In the circumstances, the view taken by the learned trial Judge is certainly a possible view which could have been taken on the basis of the evidence on record. No case is made out for grant of leave. Application is rejected.

#7. It is made clear that the observations made in this order are for limited purposes of considering the prayer for special leave to prefer an appeal and none of these observations shall be construed as any finding on the rights and liabilities of - 4 - the parties. JUDGE JUDGE JUDGE