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IN THE HIGH COURT OF BOMBAY AT GOA.

CRIMINAL APPEAL NO.23 OF 2007

M/s Paul Dias and Sons

by its partner, Mr. William Dias,

10, Khalap Mansion,

Vasco da Gama, Goa.

... Appellant

v e r s u s

M/s SDS Shipping Pvt. Ltd.,

by its Managing Director,

Capt. V.K.S. Saigal, having their

office at C-72, Mittal Court,

Nairman Point, Mumbai – 400 021

... Respondents

Mr. A. F. Diniz, Advocate for the Appellant.

Mr. A. Monteiro, Advocate for the Respondent.

CORAM: R. C. CHAVAN, J.

DATED: 22nd July, 2008.

ORAL JUDGMENT:

This appeal by the complainant takes exception to

judgment rendered by the learned Judicial Magistrate, First

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Class, Vasco in Criminal Case No.536/04 whereby the learned

Magistrate acquitted the respondent of the offence punishable

under section 138 of the Negotiable Instrument Act.

2.

The facts which led to filing of the complaint are as

under:

The complainant/company are Ship Chandlers who

provide various ship stores to ships which call at Mormugao Port.

The respondent/company has been arranging for supply of such

stores through the complainant as Agents of Russian Vessel A.

A. Sidorenko. The respondent has issued cheques No.353919

and 353921 dated 22.08.2003 and 30.09.2003 drawn on

Centurion Bank at Vasco for Rs.2,00,000/- each towards ship

stores supplied to the said Russian Vessel A.A. Sidorenko. The

complainant presented the first cheque No.353919 for clearance

on 25.08.2003 through their bankers, which was returned back

for want of funds. It was again presented on 14.10.2003 and

was once again returned for want of funds. This cheque,

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alongwith other cheque No. 353921, were again presented on

19.02.2004 and both the cheques bounced for want of funds.

On 18.03.2004, the complainant issued a notice by registered

post acknowledgment due informing the accused of dishonour of

cheques and making a demand of money at the earliest. This

notice was received by the accused on 20.03.2004 and was

replied by letter dated 20.3.2004 acknowledging that the amount

was due and promising payment after the Russian elections

were over. Since the payment did not come through, the

complainant filed a complaint before the learned Magistrate.

3.

Upon issuance of process, accused applied for being

represented by one Dinesh Jamsandekar, Accounts Manager in

place of the Managing Director. The Trial Court rejected his

application leading the accused to file Revision, which was

allowed by the Sessions Judge, allowing Dinesh Jamsandekar to

represent the accused.

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4.

Upon considering the evidence tendered, the learned

Magistrate held that the complainant had failed to prove the

ingredients of the offence punishable under section 138 of the

Negotiable Instrument Act and proceeded to acquit the

respondent, which has led to filing of the present appeal.

5.

I have heard Mr. Diniz, the learned counsel for the

appellant and Mr. Monteiro, the learned counsel for the

respondent. With the help of of both the learned counsel, I

have gone through the complaint, documents and the evidence

tendered. The learned counsel for the appellant submitted that

the learned Trial Magistrate should not have held against the

complainant in face of reply to the notice of dishonour dated

18.3.2004 sent under the signature of Dinesh Jamsandekar. The

contention of the learned counsel for the respondent is that

Dinesh Jamsandekar may have been the Accounts Manager,

but had no authority to accept liability since he is not in charge

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and responsible for the conduct of the business of the company.

What Dinesh Jamsandekar has done by notice dated 18.3.2004

is not acceptance of liability on behalf of the company, but

merely acknowledgment on the basis of the material and the

accounts books in his possession, that the company was liable to

make payment towards the cheques