1.The complainant seeks leave to appeal against acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881.

2. The complainant is a private limited Company. The complaint was filed for dishonour of five postdated cheques. The cheques deposited by the complainant with Central Bank of India were returned dishonoured and a notice dated 10/10/2008 when sent to the accused was not complied with.

3. The complaint was signed by one Jose Francisco Gomes as authorised representative of the complainant but what was placed on record at the time of filing the complaint was a letter of authority dated 27/ 07/2007 purported to be signed by the Director of the complainant authorising the said Jose Francisco Gomes to give the statement in a criminal case filed against Shiraz Shaikh.

4. The accused came to be acquitted by judgment dated 16/04/2010 by the learned JMFC by stating that the complainant had not placed on record any authority letter authorising the said Jose Francisco Gomes to file the complaint as the authority letter produced on record was given to Jose Francisco Gomes to give the statement against one Shiraz Shaikh and not against the accused Reeves Mia. The learned JMFC, therefore, proceeded to dismiss the complaint and acquit the accused under Section 138 of the Negotiable Instruments Act, 1881.

5. Shri C.A. Coutinho, the learned Counsel appearing on behalf of the complainant submits that the said Jose Francisco Gomes had stated in para 2 of the affidavit in evidence that he was the authorised representative of the complainant company and working as liaison Officer for the company, a fact which was not contested by the accused. Learned Counsel then points out that the accused had paid a sum of Rs.20,000/- on 26/03/ 2010 and Rs.5,000/- on 12/04/2010 in the hands of the said Shri Gomes and, therefore, the accused cannot now say that the said gomes had no authority to represent the complainant Shri Coutinho has placed reliance on several authorities.

6. On the other hand, Shri Shirodkar, the learned Counsel on behalf of the accused submits that the accused, in the cross-examination of the said Shri Gomes, had suggested to him that he had no right to file a complaint against the accused and inspite of that the accused did not produce the resolution in his favour passed by the complainant either to file a complaint or to depose on behalf of the complainant. Learned Counsel next submits that there is also no averment in the complaint to say that the said Shri Viegas was authorised by the complainant to file the complaint. Therefore, learned Counsel contends, the accused has been rightly acquitted by the learned trial Court.

7. I am not impressed with the submissions made on behalf of the complainant. Not that the said Shri Gomes was not aware that he required an authority from the complainant to represent the complainant. He was fully aware and did file one. Admittedly, the subject cheques were drawn in favour of the complainant and, therefore, the complainant was the payee of the cheques. Section 142 requires the complaint to be filed in the name of the payee.

8. The Apex Court in National Small Industries Corporation Limited V/s. State (NCT of Delhi) & Ors. (2009 (1) SCC 407) : [2009 ALL SCR 538] has held in the light of Section 142 of the Act that it is the payee alone who can be the complainant when the cheque has not been endorsed by the payee in favour of anyone. The Court further observed that:

"...Where the complainant is a company, who will represent the company and how the company will be represented in such proceedings, is not governed by the Code but by the relevant law relating to the companies. A company is a de jure complainant and its employee or other representative, representing it in Criminal proceedings, becomes de facto complainant. Thus in every complaint, where the complainant is an incorporeal body, there is a complainant - de Juri and a complainant-de facto...'"

The Court further obs