MAINUDDIN ABDUL SATTAR SHAIKH Vs. VIJAY D SALVI

JUDGEMENT

(1.) This appeal, by special leave, has been filed against the judgment and order dated 9.10.2007 passed by the High Court of Judicature at Bombay in Criminal Application No.646 of 2006, whereby the High Court has refused leave to appeal against the judgment of the Trial Court, to the appellant herein.

(2.) The brief facts necessary to dispose of this appeal are that in the year 1999, the appellant had booked a flat at Khargar Project proposed to be developed by M/s. Salvi Infrastructure Pvt. Ltd. through the accused-respondent by paying him Rs.74,200/-. In acknowledgment of the said amount, the accused respondent issued two receipts to the appellant, for a sum of Rs.59,000/- and Rs.14,200/-, respectively. By the year 2003, as alleged by the appellant, the aforesaid project of the respondent did not materialize. After much persuasion, the accused respondent drew cheque No.075073 for Rs.74,200/- in favour of the appellant, of an account maintained by him with his banker towards refund of the aforesaid booking amount. The cheque was drawn by the respondent in his individual capacity and not in the capacity as a Director of M/s. Salvi Infrastructure Pvt. Ltd. or as Proprietor of Salvi Builders and Developers. When the appellant presented the said cheque on 1.08.2003 to his Bank for realization, the same was returned unpaid. Hence, the appellant sent notice of demand dated 25.8.2003 through his advocate under Section 138(b) of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the NI Act"), to the respondent. As the accused respondent failed to pay the amount within 15 days of the notice of demand, the appellant filed a complaint under Section 138 of the N.I. Act.

(3.) The aforesaid complaint filed by the appellant was taken up by the Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai, and vide his order dated 15.12.2005 passed in C.C. No.5194/2003, the Metropolitan Magistrate acquitted the respondent. The reasons given for the acquittal of the respondent were that the Company M/s. Salvi Infrastructure Pvt. Ltd. was not made the accused and instead the respondent was made accused in his personal capacity. The cheque could not be said to have been issued for the discharge of whole or part of the liability because it exceeded the liability. Further, it had not been proved that the respondent was a person liable to make the payment for M/s. Salvi Infrastructure Pvt. Ltd.