Proof of authorization to file a complaint and establishing the issuance of a cheque in discharge of a legally enforceable debt are essential for maintaining a case under Section 138 of the Negotiable Instruments Act.

ABHAY M. THIPSAY, J.

1. The appellant is a co-operative bank. It had filed a complaint against respondent no. 1 herein alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act (N.I. Act). The Judicial Magistrate First Class, Karad, after holding a trial, held respondent no. 1 not guilty and passed an order of acquittal. Being aggrieved by the said order of acquittal, the appellant has, after obtaining special leave of this court, filed the present appeal.

2. During the pendency of the appeal, the appellant has also filed an application praying that additional evidence, as contemplated under Section 391 of the Code of Criminal Procedure (Code), be directed to be taken. It was decided that this application for a direction to take additional evidence, be also considered along with the appeal.

3. Respondent No. 1 did not remain present at the time of final hearing of the appeal, inspite of notice, and inspite of granting him repeated opportunities to be present. The appeal, as well as the application for further evidence to be taken is, therefore, being decided, after hearing the learned counsel for the appellant and the learned APP and after going through the relevant record and proceedings.

4. I have heard Mr. Shekhar Jagtap, the learned counsel for the appellant. With his assistance, I have gone through the impugned judgment, the complaint, and the notes of evidence adduced during the trial, which are annexed to the appeal memo.

5. For the sake of convenience and clarity, the appellant shall hereinafter be referred to as the complainant and respondent no. 1 as the accused.

6. The case of the complainant was that, in repayment of the loan taken by the accused from the complainant bank, the accused had issued a cheque in the sum of Rs. 5 Lac, which was dishonoured, and that, inspite of making a demand for the amount of the said cheque, the same was not paid.

7. One Hindurao Kumbhar, authorized Officer of the complainant bank, was examined as a witness during the trial. No other witness was examined by or on behalf of the complainant. The accused also did not examine himself on oath or lead any evidence in defence.

8. The order of acquittal was passed by the learned Magistrate mainly on two grounds. The Magistrate was of the view, firstly, that the authority of the said Hindurao Kumbhar to file a complaint on behalf of the complainant bank, was not satisfactorily proved. He was of the view that since the complaint had not been filed by a person duly authorized by the payee i.e. the complainant bank, the complaint was not maintainable. Secondly, the Magistrate held that, that the cheque had been issued in discharge of a legally enforceable debt or other liability, had also not been proved.

9. The learned counsel for the appellant submitted that, that the complaint had not been filed by an authorized officer or person, was not correct. He pointed out that the resolution passed by the complainant bank authorizing the said Hindurao Kumbhar was filed before the Magistrate, and that, the resolution clearly authorized the said Hindurao Kumbhar to file a complaint on behalf of the complainant bank.

10. This submission of the learned counsel for the applicant appears to be proper. The Magistrate's reasoning that the resolution had not been proved because the same had been passed in the absence of the said Hindurao Kumbhar, and that, he had no personal knowledge about the said resolution is not sound. The Magistrate's view that some of the persons who passed the resolution ought to have been examined, is not correct.

11. However, the other finding recorded by the Magistrate i.e. that the complainant had failed to prove that the cheque in question was issued in discharge of a legally enforceable debt or other liability appears to be correct.

12. Interestingly, the complaint merely states that the accused had issued the cheque in repayment of the loan without giving any particulars of the loan