The authority of a firm's representative to file a complaint under Section 138 must be proved; failure to do so invalidates the conviction.

ORDER :

S VISHWAJITH SHETTY, J.

1. Petitioner-accused is before this Court assailing the judgment and order of conviction and sentence dated 10.02.2023 passed in CC.No.1238/2020 by the Court of I Addl. Senior Civil Judge & JMFC, Chikkamagaluru, which is confirmed in Crl.A.No.88/2023 by the Court of II Addl. District & Sessions Judge, Chikkamagaluru, by judgment and order dated31.08.2023.

2. Heard the learned Counsel for the parties.

3. Petitioner herein was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, in CC.No.1238/2020 before the Trial Court.

4. It is the case of the respondent-complainant that petitioner is the customer of the respondent-firm and he had purchased fuel worth Rs.2,70,120/- from the petrol bunk of the respondent. Towards repayment of the amount due with interest, petitioner had issued a cheque bearing No.026916 dated 31.12.2018 for a total sum of Rs.3,31,133/- drawn on Bank of India, Chikkamagaluru Branch, in favour of the respondent. The said cheque was dishonoured on presentation for realization, and thereafter, a legal notice was issued to the petitioner, and since the petitioner had not paid the amount covered under the cheque in question inspite of service of statutory notice on him, the respondent-firm had initiated proceedings against the petitioner before the jurisdictional court of Magistrate for the offence punishable under Section138 of the N.I.Act.

4. The petitioner in response to the summons received by him from the Trial Court in CC.No.1238/2020, had appeared before the Court and pleaded not guilty.

5. The respondent-firm in order to substantiate its case against the petitioner, had examined PW-1 - Mithun before the Trial Court and also produced five documents as Exs.P-1 to P-5. Petitioner had not led any defence evidence, nor had produced any documents in support of his defence. The Trial Court after hearing the arguments addressed on both sides, vide the impugned judgment and order dated 10.02.2023 passed in CC.No.1238/2020, had convicted the petitioner for the offence punishable under Section 138 of the Act and sentenced him to pay fine of Rs.4,40,000/- and in default, to undergo simple imprisonment for a period of six months. The said judgment and order of conviction and sentence passed by the Trial Court, has been confirmed in Crl.A.No.88/2023 by the Appellate Court vide judgment and order dated 31.08.2023. It is under these circumstances, petitioner-accused is before this Court.

6. Learned Counsel for the petitioner submits that PW-1 has not produced any material before the Trial Court to show that he was authorized to represent the respondent-firm. It was also disputed that PW-1 was the Manager of the respondent-firm. The Trial Court as well as the Appellate Court have failed to appreciate this aspect of the matter. In support of his submissions, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of MILIND SRIPAD CHANDURKAR VS KALIM M.KHAN & ANOTHER - (2011) 4 SCC 275, and also on the judgment of the High Court of Kerala in Crl.A.No.968/2007 disposed of on 16.06.2025.

7. Per contra, learned Counsel appearing for the respondent has argued in support of the impugned judgment and order of conviction and sentence passed by the courts below and submits that in the complaint as well as in the cause title of the complaint, it is clearly stated that PW-1 is the Manager of the respondent-firm. He submits that perusal of the cross- exa