IMPORTANT POINT
Complaint u/ s 138 of Negotiable Instruments Act by one of the partners of the firm can not be faulted.

RM. Lodha, J. - All the aforesaid five criminal appeals arise out of the common judgment of acquittal passed by the Judicial Magistrate, First Class, Nagpur in all five criminal cases and, therefore, these five criminal appeals have been heard together and are disposed of by this common judgment.

2. Five different complaints were filed by the present appellant Ganesh Sukhlal Josru, Partner of M/s. Nagpur Chemical Agency (for short, the 'complainant') against the respondent No.1 MA Bhamti, Managing Director, M/s. Nagpur Detergent Private Limited, C-27 MIDC Hingna Road, Naagpur (for short, the 'accused') in the Court of the Judicial Magistrate, First Class, Nagpur for the offence punishable under Section 138 of the Negotiable Instruments Act. For the purposes of the facts, Complaint No. 1125 of 92 filed by the complainant against the accused may be adverted to. According to the complainant, it has been supplying sodium tripoly phosphate and sulphonic acid to the accused and on 10.12.91 vide Order No. NDPL/42/91-92, complainant supplied Scid Clurry to the accused for consideration of Rs. 3,69,984.21. Accused issued cheques towards part payment of the aforesaid amount. The complainant presented the cheques to the State Bank ofIndia and the said cheques were returned by the Bankers with the endorsement "exceeds arrangement". On receipt of the intimation from the Bankers about the dishonour of cheques for insufficient funds in the Bank account of the accused, complainant issued statutory notice asking the accused to pay amount of cheque within 15 days therefrom. According to the complainant, it false reply was sent by the accused and failed to make payment of the said amount and consequently, the complaint case was filed.

3. On the basis of the said complaint, trial commenced and statement of accused under Section 313 of the Criminal Procedure Code was recorded. The Trial Court after recording the evidence, documentary as well as oral and hearing the learned Counsel for parties, held that the complaint has not been properly filed and that it is not proved that the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act and consequently, accused was acquitted of the offence under Section 138 of the Negotiable Instruments Act in all the cases giving rise to all these five criminal appeals against the judgment of acquittal.

4. I have heard the learned Counsel for the appellant and the respondents in all these criminal appeals and with their assistance, I have perused the judgment of acquittal passed by the Trial Court on 18.10.93 and also relevant evidence available on record.

5. Mr. Kaptan, the learned Counsel for complainant submitted that the complaint was filed by the complainant in his capacity of Paitner of M/s. Nagpur Chemical Agency and there was no infirmity in filing the complaint case by one of the partners of the Firm and the Trial Court seriously erred that the complaint filed by the complainant was not maintainable. In support of his contention, Mr. Kaptan relied upon the decision of this Court in Brijla1 v. Jugalkishor1. Mr. Kaptan also contended that the Trial Court seriously erred in holding that the complainant has not been able to prove that the cheques were drawn by the accused in discharge of some liability. According to the learned Counsel, under Section 139 of the Negotiable Instruments Act, the presumption was that the c1K'ques had been drawn by the accused in favour of the complainant in discharge of debt or other liability and, therefore, it was necessary for the accused to discharge the burden cast upon him. The learned Counsel, thus, contended that the accused having failed to dislodge the presumption or having failed to discharge the burden cast upon him, the finding of the Trial Court is not justified.

6. As against this, Mr. S.V. Purohit, the learned Counsel for respondent No. 1 in an these appeals submitted that on the basis of the material available on record,