IMPORTANT POINT
Section 190, Cr.P.C. does not override Section 142 (a), N.I.A.

Sham Sunder, J.—This appeal is directed against the judgment of acquittal dated 13.8.1993, rendered by the Court of Sub-Divisional Judicial Magistrate. Amloh, vide which, it acquitted Sanjiv Kumar, accused, of the offence, punishable under Section 138 of Negotiable Instruments Act, 1881 (Amended up-to-date)—(hereinafter to be called as the ‘Act’ only).

2. A criminal complaint, under Section 138 of the Act, was filed by M/s. Surindera Steel Rolling Mills, Mandi Gobindgarh (complainant now appellant), through Ram Sarup, its Manager, on the allegations, that the accused purchased re-rolling material from it, vide bill No. 880, dated 20.12.1989 of the value of Rs. 3,58,449/-. This amount was carried forward to the next financial year i.e. 1990-91. Against the amount of this bill, the accused, being proprietor of firm M/s. Prompt Steel, issued a cheque No.0718338 in the sum of Rs. 60,000/-, dated 10.12.1990, by way of part payment, in favour of the complainant firm, assuring that the same would be honoured. When the cheque was presented to the Bank, by the complainant, through its Bankers, the same was returned dishonoured by the Union Bank of India, Mandi Gobindgarh, with the remarks “refer to drawer”, meaning thereby that there was no arrangement to pay the amount of the said cheque. Thereafter, the complainant, served a statutory notice, upon the accused asking him to make the payment of Rs. 60,000/-, of the cheque, in question, within a period of 15 days, from the date of receipt of the said notice, which was delivered to him on 21.12.1990. Despite service of notice, payment was not made.

3. After going through the preliminary evidence, the accused was summoned for the offence, punishable under Section 138 of the Act.

4. On appearance of the accused, he was supplied a copy of the complaint. Notice, under Section 138 of the Act, was served upon him, to which he pleaded not guilty.

5. Ram Sarup, Manager of the Company, through whom the complaint was filed, appeared as PW1. Yashpal Singla appeared as PW2, whereas, Atul Kumar Singla, Handwriting and Fingerprint Expert, Patiala, appeared as PW3. Thereafter, the complainant closed its evidence.

6. The statement of the accused, under Section 313, Cr.P.C., was recorded, wherein, he admitted having purchased the goods from the complainant. He also admitted that he issued the cheque in question, which was dishonoured. It was stated by the accused, that it was a post-dated cheque. It was further stated that since all the goods were not supplied, a civil suit for damages was filed by him. He also stated that he did not give the cheque, as part payment.

7. In defence, the accused examined Shanti Sarup DW1 and Krishan Kumar DW2. Thereafter, he closed the defence evidence.

8. After hearing the Counsel for the parties, and on going through the record of the case, the trial Court, came to the conclusion, that the complaint had not been filed through a competent person and, as such, was not maintainable. Ultimately, the accused was acquitted on this sole ground.

9. Feeling aggrieved, the instant appeal was filed, by the complainant/appellant.

10. I have heard the Counsel for the parties, and have gone through the record of the case carefully.

11. The Counsel for the appellant, at the very outset, submitted that the trial Court was completely wrong in coming to the conclusion, that Ram Sarup was not a duly authorized/competent person to file the complaint, on behalf of the complainant. He further submitted that Ram Sarup being the Manager of the complainant firm was duly competent to file the complaint. He further submitted that Ram Sarup, being the Manager and as such, the Officer of the firm could file the complaint. He placed reliance on

M/s. M.M.T.C. Ltd. v. M/s. Medchl Chemical and Pharma (P) Ltd.1; Raghu Lakshminarayanan v. M/s. Fine Tubes2; Sri Vasavi Chit Funds, Eluru v. B. Eswaramma, Development Officer, LIC of India and Others3; M/s. Shankar Finance and Investments v. State of Andhra Prad