Bombay High Court
Mandar Santosh Bhargave vs Madhusudhan Trimbak Rajebahaddar ... on 1 July, 2024
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY PRIVATE PARTY NO. 23 OF 2021
Mandar Santosh Bhargave
Age : 37 years, Occupation : Service,
R/o 404, Gaurav Pride, Bhagwan Nagar,
Bhumkar Chowk, Wakad, Pune. ... Appellant
[Orig. Complainant]
Versus
1. Madhusudan Trimbak Rajebahaddar
President
M/s. Rajebahaddar Heart Foundation Pvt. Ltd.,
Age: 55 years, Occupation : Business,
R/o 95, Tarang Lane No.5, Jaiprakash Nagar,
Goregaon (East), Mumbai.
2. M/s. Rajebahaddar Hospital and Research
Center Pvt. Ltd. Through its Director
2A. Shri Madhusudan Trimbak Rajebahaddar
Age: 55 years, Occupation Business,
R/o Plot No. 13-14/199,
Rajebahaddar Colony, Tilak Road, Nashik.
2B Sau. Jyoti Madhusudan Rajebahaddar
Age: 50 years, Occupation: Business,
R/o Plot No. 13-14/199,
Rajebahaddar Colony, Tilak Road, Nashik.
3. Madhusudan Trimbak Rajebahaddar
Age : 55 years, Occupation: Business,
R/o C/o Rameshwar S. Malani,
Manek Heights, 6th Floor, Flat No. 601,
Kulkarni Bag, Lane No.3,
Near Yog Vidyan, College Road, Nashik. ... Respondents
[Orig. Accused]
.....
Mr. Akshay Kulkarni, Advocate h/f Mr. Amit A. Yadkikar, Advocate
for the Applicant.
Mr. Abhijit G. Choudhari, Advocate for the Respondents.
.....
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CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 27.06.2024
Pronounced on : 01.07.2024
ORDER :
1. On account of acquittal of present respondents from offence
under Section 138 of the Negotiable Instruments Act, 1881 [N.I. Act]
original complainant has pressed into service instant leave application
praying to accord leave to file appeal against the judgment and order
passed by learned Chief Judicial Magistrate, Court No.2, Ahmednagar
in S.C.C. No. 1405 of 2019 dated 31.03.2021.
2. Learned counsel for the applicant pointed out that proceedings
were instituted by complainant alleging commission of offence
punishable under Section 138 of the N. I. Act. That, accused and his
two sons were intending to expand hospital business and therefore,
out of friendly and longstanding relations, as accused persons were in
need of money, he and his father had jointly helped accused by
extending friendly loan to the tune of Rs.25,00,000/-. That, receipt to
that extent was also executed and that accused had agreed to repay
the amount within two to three years. That, in 2018, complainant was
in need of money, more particularly for the treatment of his father
ALP-23-2021
and therefore, he demanded repayment and towards it, cheque was
issued on 29.11.2018 with assurance that the same would be
honoured. That, even four other cheque were issued, but in the names
of father and mother of complainant as complainant's family was joint
family. That, cheque got dishonoured and therefore, as required, legal
notice was dispatched, but accused failed to repay the amount in spite
of receipt of said notice. Therefore, proceedings under Section 138 of
the N.I. Act were instituted.
3. Learned counsel further pointed out that there was no denial of
issuance of cheque or signature over it. Only stand taken was that it
was towards security. That, moreover, learned trial court dismissed
the complaint by invoking Section 141 of the N.I. Act, i.e. on the
ground that company was not made party. Learned counsel invited
attention of this Court to the cause title and would submit that, apart
from giving names of respondent nos. 2A, 2B and 3, name of the
company was arrayed as respondent nos. 1 and 2. Therefore,
according to learned counsel, learned trial court has erred in
dismissing the complaint. There is a good case in appeal on merits,
and hence, he seeks leave.
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4. In answer to above, learned counsel for the respondents/
original accused would submit that learned trial court has rightly
considered that there was no legally enforceable debt. That, there was
no cheque towards any friendly loan, rather, cheque issued by way of
security has been misused. Learned counsel for the respondents relied
on the ruling of the Hon'ble Apex Court in the case of Aneeta Hada
and Others v. Godfather Travels and Tours Pvt. Ltd. and Others
reported in AIR 2012 SC 2795.
5. Heard both sides.
6. Present leave application is by complainant, who instituted
proceedings under Section 138 of the N.I. Act against present
respondents. After considering the oral submissions advanced before
this Court, on one hand, it is case of applicant/original complainant
that amount of Rs.25,00,000/- was given to accused due to
longstanding relations, i.e. for hospital business of respondents, and
towards payment of such amount, receipt was also executed. On the
other hand, stand of respondents is that there was no transaction of
any loan as alleged. Rather, cheque given towards security has been
misused.
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7. Trial court seems to have held that there was transaction
between M/s Rajebahaddar Heart Foundation Pvt. Ltd. and
complainant, but said company is not made an accused, and by
invoking Section 141 of the N.I. Act, such necessary party being not
arrayed, complaint seems to have been dismissed.
8. Perused the complaint. Title clause carried names of parties, i.e.
[1] Madhusudan Trimbak Rajebahaddar, President of M/s
Rajebahaddar Heart Foundation Pvt. Ltd. and [2] M/s Rajebahaddar
Hospital and Research Center Pvt. Ltd. through Director, apart from
respondents [2A] and [2B] who apparently seem to be husband and
wife.
9. It is also noticed that in para 40 of the judgment, learned trial
court has also observed that in statement under Section 313 of
Cr.P.C., accused Madhusudan Trimbak Rajebahaddar has admitted
that he is responsible for the functioning of the company. However,
learned trial court further went to observe that, that itself is not
sufficient to hold the President vicariously liable for the act of the
company. It emerging that infact, in para 2 of the impugned judgment
itself, complainant's case is narrated that accused nos. 1, 2A and 2B
are responsible for day to day work of the company.
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8. Therefore, considering above material in the judgment and the
submissions advanced before this Court, and there to be a mere
defence of cheque to be issued not towards any legal liability but
towards security, good ground is made out to be dealt in a full
fledged appeal. Hence, I proceed to pass the following order :
ORDER
I. Application is allowed.
II. Leave is granted to file appeal.
III. Registry to register the appeal.
[ABHAY S. WAGHWASE, J.]
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