- (1.) Leave granted.
(2.) These appeals are filed against the common final judgment and order dated 17/18.03.2010 passed by the High Court of Judicature at Bombay in Criminal Appeal Nos. 287 and 288 of 2009 whereby the Division Bench held that the complaint under Section 138 of the Negotiable Instruments Act, 1881 (in short "the Act") without signature is maintainable when such complaint was subsequently verified by the complainant.
(3.) Brief facts: (a) Indra Kumar Patodia and Mahendra Kumar Patodia the appellants herein are accused in Criminal Complaint being CC No. 1866/SS of 2007 (1866/MISC/1998) filed before the 16th Court of Metropolitan Magistrate, Ballard Estate, Bombay, for the offence punishable under Section 138 read with Sections 141 and 142 of the Act. Respondent No.3 herein is a Company duly registered under the Companies Act, 1956, presently under liquidation and official liquidator has been appointed by the High Court, which has alleged to have issued the cheques to respondent No.1. (b) Respondent No.1 is the complainant and the manufacturers of Partially Oriented Yarn (POY) and other textile goods. From time to time, Respondent No. 3 used to place orders for the supply of POY to Respondent No. 1 and had issued 57 cheques between 02.12.1997 to 09.03.1998 for the payment of the same. (c) The aforesaid cheques were deposited by the complainant on 05.04.1998 and were returned by the Bank on 06.04.1998 with the remark "exceeds arrangement". Pursuant to the same, Respondent No.1 issued a notice dated 16.04.1998 to the appellants and demanded the aforesaid amount for which they replied that they have not received any statement of accounts maintained by the complainant regarding the transactions with the accused. In addition to the same, Respondent No.3, vide letter dated 29.05.1998, made various claims for the rate difference, discounts etc., in respect of the transactions, however, Respondent No.1 filed a complaint on 03.06.1998 being Complaint No. 1866/SS of 2007 (1866/MISC/1998) under Section 138 read with Sections 141 and 142 of the Act. On 30.07.1998, the Metropolitan Magistrate recorded the verification statement and issued summons against the appellants and respondent No.3 herein. (d) The appellants preferred an application being C.C. No. 1332/9/1999 before the Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai for recalling the process issued against them. By order dated 28.08.2003, the Metropolitan Magistrate, dismissed the said application. (e) Challenging the said order, the appellants and respondent No.3 herein filed an application in the Court of Sessions for Greater Bombay at Bombay bearing Criminal Revision Application No. 749 of 2003. By Order dated 08.10.2004, the Sessions Judge dismissed the said application as not maintainable. (f) By order dated 26.11.2008, the Metropolitan Magistrate dismissed the complaint and acquitted the accused persons. (g) Challenging the acquittal of the accused persons, respondent No.1 herein-the complainant, filed appeals being Criminal Appeal Nos. 287 and 288 of 2009 before the learned single Judge of the High Court. The learned single Judge, by order dated 09.07.2009, referred two points for consideration by the larger Bench, viz., (1) In the matter of complaint for the offence punishable under Section 138 of the Act whether the complaint without the signature of the complainant, inspite of verification of complaint, is "non-entia" and whether no prosecution can lie on such complaint ; and (2) If answer to point No.1 is negative then whether it is a mere irregularity and it can be cured subsequently and whether such subsequent amendment would relate back to the date of filing of the complaint or whether it would hit by the Law of Limitation. (h) By impugned common judgment dated 17/18.03.2010, the Division Bench of the High Court, disposed of the matter by answering point No.1 in the affirmative holding that the complaint under Section 138 of the Act is maintainable and when such complaint is subsequently verified by the complainant and the process is issued by the Magistrate after verification, it cannot be said that the said complaint is "non-entia" and the prosecution of such complaint is maintainable. Further, it was held that since the answer to point No.1 was in affirmative, it was not necessary to decide point No.2 and directed to place the appeals for deciding the same on merits. (i) Aggrieved by the said decision, the appellants have filed the above appeals by way of special leave before this Court.;