SHAMIT M MEHTA Vs. B A PATEL

JUDGEMENT

(1.) THE submissions of the Advocates for the parties were heard on the last date. Today further submissions were heard. This is an Application for special leave to prefer an Appeal under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. By a Judgment and Order dated 5th July 2002, the learned Trial Judge acquitted the first and second Respondents of the offence under section 138 read with section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act of 1881). The case of the Applicant/complainant was based on an agreement dated 11th March 1996 to which the applicant and the second Respondent are parties. The case of the Applicant is that the first Respondent approached him in March 1996 and gave a proposal to invest money in the second Respondent-Company. It was represented to the Applicant that the second Respondent will come out with an issue and that if the Applicant invests money, the shares will be repurchased by the first and second Respondent at the rate of Rs.4.50/- per share. According to the case of the complainant, he paid a sum of Rs.5,50,000/- in cash to invest the same in public issue of the second Respondent for purchasing two lakh shares at the rate of Rs.2.50 per share. According to the Applicant, in terms of the agreement, a post dated cheque in the sum of Rs.9,90,000/- was issued by the second Respondent representing the purchase price of the shares at the rate of Rs.4.50 per share. The said cheque was dishonoured and the complaint was filed.

(2.) THE learned Judge has recorded a finding that the Applicant did not invest any amount by applying for shares and there was no allotment of shares to him. Therefore, aconclusion is drawn that there was no legally enforceable liability.

(3.) THE learned Advocate for the first and second Respondent submitted that the evidence of the Applicant himself is sufficient to rebut the presumption and therefore, the learned Judge was right in passing the order of acquittal.