JITENDRA VORA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(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 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.) IN paragraph 3 of the complaint what is stated by the applicant reads thus: