DAWOODALI N ISRANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Petitioner has filed above petition under Article 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, 1908 challenging the legality and validity of the impugned order dated 18th March, 2008 passed in Criminal Revision Application No. 40 of 2008 by 9th Ad-hoc Additional Sessions Judge at Sewree, Gr. Bombay whereby the said revision filed by respondent Nos. 2 to 4 was allowed and the order of the learned Metropolitan Magistrate, 20th Court, Mazgaon, Mumbai in Criminal Case No. 3574/SS/2007 issuing process against the aforesaid respondents came to be set aside. Petitioner is sole proprietor of M/s. Eastern Enterprises, a proprietary firm. Petitioner filed Criminal Case No. 3574/SS/2007 in 20th Court of learned Metropolitan Magistrate, Mazgaon, Mumbai against respondent Nos. 2 to 4 (original accused) under the provisions of Section 138 read with Section 141 of the Negotiable Instruments Act, 1881. It is the case of petitioner that respondent No. 2 is partnership firm and respondent Nos. 3 and 4 are its partners and they are responsible for day-to-day affairs and business of the said firm. It is alleged by petitioner that respondent No. 2 (partnership firm) placed the order for supply of Alprol N32 of HPCL Oils of the contracted quality (hereinafter referred to as "the said goods"). Petitioner, accordingly, forwarded bills/invoices to respondent Nos. 2 to 4 for the delivery of said goods which were duly accepted without any protest or demur as to its quality, quantity or otherwise, the particulars of which are given in paragraph 6 of the complaint. It is the case of the petitioner that towards discharge of the legal debts and liabilities, respondent Nos. 3 and 4 issued a cheque on behalf of their partnership firm bearing No. 015801 dated 7th August, 2007 for the sum of Rs. 9,03,454/- drawn on Centurion Bank Ltd. in favour of it. Said cheque was deposited by petitioner through their bankers i.e. Development Credit Bank Ltd. However, the same was dishonoured on presentation with remarks "Funds Insufficient". Petitioner thereafter issued statutory notice dated 21st August, 2007 and demanded to pay the dishonoured cheque's amount within 15 days from the date of receipt of the said legal notice. Since payment was not received, the petitioner filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 before 20th Metropolitan Magistrate Court at Mazgaon being Criminal Case No. 3574/SS/07 within the statutory period of limitation. The learned Magistrate after going through the complaint and verification statement was pleased to pass an order issuing process against respondent Nos. 2 to 4. This order was challenged by them in revision before the Sessions Court and Sessions Court by the impugned order allowed revision and set aside the order issuing process against respondent Nos. 2 to 4. Sessions Court relied upon decision of the learned Single Judge of this Court in Mr. Roy Joseph Creado and Ors. V/s. Shaikh Tamisuddin and Ors., 2008 AllMR(Cri) 751 In Criminal Application No. 1653/03 and held that the complaint is neither signed nor verified by the Sole Proprietor of M/s. Eastern Enterprises, a Sole Proprietorship Firm and the same is defective and untenable.

(2.) The learned counsel for the petitioner pointed out that the complaint is filed by M/s. Eastern Enterprises, a Sole Proprietorship Firm. She also invited my attention to the provisions of Section 141 of the Negotiable Instruments Act, 1881 and contended that the learned Sessions judge committed error in setting aside Magistrate's order issuing process. She relied upon Apex Court's decision in Shankar Finance and Investments v. State of A.P., 2009 4 AllMR 480. Counsel for respondent Nos. 2 to 4 on the contrary, supported the impugned order. She submitted that the name of sole proprietor of M/s. Eastern Enterprise, a sole proprietary firm is not given in the cause title of the complaint. She has also submitted that the special power of attorney Mr. Haresh S. Kamdar has signed the complaint as complainant. Therefore, complaint is defective and is not maintainable and the learned Sessions Judge, therefore, rightly quashed and set aside the order issuing process against respondent Nos. 2 to 4.

(3.) Having considered the rival submissions and having gone through the impugned order alongwith the ratio of the decision of the learned Single Judge of this Court in Mr. Roy Joseph Creado,, 2008 AllMR(Cri) 751 and the decision of the Apex Court in M/s. Shankar Finance & Investments , I find merit in the above petition. Section 142(a) of the Negotiable Instruments Act, 1881 maintains that no Court shall take cognizance of any offence punishable under Section 138 except on a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque where the payee has endorsed the cheque in favour of someone else. Perusal of the complaint shows that the same is filed by said M/s. Eastern Enterprise, a sole proprietary firm. which is payee within the meaning of Section 142(a) of the Negotiable Instruments Act, 1881. In this regard, the Supreme Court in Shankar Finance and Investments made following observations in paragraph 7 which areas follows: