IMPORTANT POINT
The person who is to be made liable should be the drawer of the cheque and should have drawn the cheque on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for discharge, in whole or part, of any debt or other liability.

JUDGMENT

Pinaki Chandra Ghose, J.

1. This appeal is directed against the judgment and order dated 1st April, 2009 passed by the High Court of Judicature at Bombay in Criminal Application No.940 of 2008 whereby the High Court has rejected the prayer for leave to appeal against the judgment of the Trial Court.

2. The brief facts of this case are as follows: The appellant supplied goods to M/s. Shah Agencies. The 1st and 2nd Respondents carried their business in the names of M/s. Shah Enterprises and M/s. Shah Agencies. In part discharge of the liability of M/s. Shah Agencies, two cheques for Rs. 5 lakhs each, both dated 20th August, 2000, drawn on the Vysya Bank Ltd., S.P. Road, Secunderabad, signed by Respondent No.2 as Power of Attorney Holder of Respondent No.1, were issued on an account maintained by M/s. Shah Enterprises.

3. On presentation, both the cheques were dishonoured due to insufficient balance in the account of M/s. Shah Enterprises. A demand notice dated 8th March, 2001 was served upon respondent Nos.1 & 2 which was duly received by them on 13th March, 2001. The respondents failed and neglected to comply with the said notice of demand. Hence, a complaint was lodged before the Metropolitan Magistrate, 28th Court, Esplanade, Mumbai. The said complaint was numbered as CC No.505/S/01 dated 17th April, 2001. The said complaint was lodged against the accused respondents describing accused No.1 as the Proprietor of M/s. Shah Enterprises and accused No.2 as Power of Attorney Holder of the said M/s. Shah Enterprises. The Trial Court acquitted the respondents on the ground that the appellant did not institute the case against the partnership firm i.e. M/s. Shah Enterprises.

4. Being aggrieved by the said order passed by the Metropolitan Magistrate, the appellant filed an application for leave to appeal under sub-section (4) of Section 378 of the Code of Criminal Procedure, 1973, before the Bombay High Court. The High Court by its order dated April 1, 2009 held that the applicant has not made out a case for grant of leave to appeal under Section 378(4) Cr.P.C. and rejected the said application for leave to appeal. The High Court held that the case made out in the complaint was that the goods were sold and supplied to M/s. Shah Enterprises and the liability was of M/s. Shah Enterprises. While in the affidavit in lieu of examination-in-chief, the appellant herein came out with a case that the liability was that of M/s. Shah Agencies as goods were sold and supplied to M/s. Shah Agencies and it was not the case of the appellant that the accused had agreed to take over and discharge the liabilities of M/s. Shah Agencies.

5. The question which arose before us is whether the High Court was correct in coming to such a conclusion. The High Court duly perused the complaint, affidavit in lieu of examination-in-chief of the applicant, his cross-examination and other material documents on record. From these documents it appears that notice of demand had been addressed to the first respondent in her capacity as a Proprietor of M/s. Shah Enterprises, and to the second respondent in his capacity as the Power of Attorney Holder of M/s. Shah Enterprises. In the notice itself it has been stated that the goods were sold and supplied to the Proprietor of M/s. Shah Agencies. In the notice it has been further stated that the appellant is engaged in business of manufacturing and selling of synthetic Polymers/Resins and in response to the orders from the 2nd respondent as Proprietor of Shah Agencies, the applicant has supplied goods from time to time and the disputed cheques were issued in discharge of the liabilities of such supply. The notice was addressed to the Proprietor and the constituted Attorney of M/s. Shah Enterprises, but there is no specific averment that the liability of M/s. Shah Agencies was taken over by M/s. Shah Enterprises. In the complaint, the first respondent was impleaded as Proprietor of M/s. Shah Enterprises and the secon