IMPORTANT POINT
Where cheque was drawn in favour of a company and demand notice as well complaint filed for dishonour of cheque was by different company, it would not be maintainable.

K.N. Basha, J.—This Appeal is preferred by the complainant challenging the order of acquittal passed by the learned Judicial Magistrate, Udhagamandalam, in C.C. No. 208 of 1996 dated 26.2.1998 acquitting the accused for the offence under Section 138 of Negotiable Instruments Act (hereinafter referred to as “the Act”).

2. The case of the complainant is that the accused issued a cheque, Ex. P1, dated 12.10.1993 for an amount of Rs.1,00,000 drawn on Canara Bank, Denaducombai Branch, Udhagamandalam. The complainant thereafter presented the said cheque for payment though their Bankers, M/s. Vijaya Bank, Udhagamandalam, on 12.10.1993 and the same was dishonoured by the bankers on the ground that the account was already closed. The Bank Memo dated 15.10.1993 is marked as Ex. P2 and the Bank Intimation dated 18.10.1993 is marked as Ex. P3. The complainant thereafter sent a registered legal notice dated 30.10.1993, Ex. P4 and the acknowledgment for the same is marked as Ex. P5. The accused has also sent a reply notice in Ex. P6 denying the allegations of the complainant. Ex. P7 is the Savings Bank Deposit Rules and Regulations of Canara Bank and Ex. P8 is the Statement of Accounts.

3. The complainant, in order to prove his case examined PWs. 1 and 2. PW1 is the Foreman of the complainant Company and PW2 is the Bank Manager.

4. When the accused was questioned under Section 313 of Cr.P.C. in respect of incriminating materials made appearing against him through the evidence of PWs 1 and 2, the accused has come forward with the version of total denial. He has not chosen to examine any witness on his side.

5. The learned Trial Judge on consideration of the entire evidence adduced by the complainant, both oral and documentary evidence, has

come to the conclusion that the complainant failed to prove his case and acquitted the accused on the following grounds:

(1) That there is a delay in representation of the complainant nearly about 2 years and 8 months and there is no explanation or sufficient cause given by the complainant in respect of such delay. Therefore, it is held that cognizance of the offence was taken in this matter beyond the period of limitation and no condonation of delay petition filed as contemplated under Section 468 of Cr.P.C.

(2) That PW1, who has filed the complaint has not produced any authorization or any Power of Attorney given by the Company viz., the complainant, authorizing him to initiate proceedings against the accused. Therefore, the evidence of PW1 is unacceptable and the entire initiation of proceedings is vitiated.

(3) Ex. P1, cheque contains different inks, namely, the amount is written in one ink and the signature was made in a different ink. Further the name of the complainant is M/s. Lakshmi Srinivas Savings and Chit Funds Syndicate Private Limited. But the cheque, Ex. P1 is given in favour of M/s. Srinivas Chit Funds Private Limited. Therefore the complainant viz., M/s. Lakshmi Srinivas Savings and Chit Funds Syndicate Private Limited is not competent to file a complaint on the basis of the cheque, Ex.P1.

(4) The complainant has not proved that Ex.P1 was issued only to the complainant Company.

(5) The complainant has not produced the account books for giving the loan of Rs. 1,00,000 to the accused. The complainant is also not able to prove that both the complainant company viz., M/s. Lakshmi Srinivas Savings and Chit Funds Syndicate Private Limited as well as the company in whose favour the cheque. Ex.P1 issued, namely, M/s. Srinivas Chit Funds Private Limited are one and the same or sister concern.

(6) The complainant has not proved the legally enforceable liability on the part of the accused.

Being aggrieved against the order of acquittal the complainant has come forward with this Appeal.

6. Mr. C.A. Diwakar, learned counsel for the appellant contended that the learned Magistrate has committed an error of law in acquitting the accused. It is also submitted by the learned counsel for t