IMPORTANT POINT
Firm must be impleaded as accused.

R.S. Chauhan, J.—The appellant, Dinesh Bansal, is aggrieved by the judgment dated 25.11.2008 passed by Judicial Magistrate (1st Class), Abu Road, District Sirohi, whereby the learned Magistrate has acquitted the respondent, Rajendra Kumar Agarwal, for offence under Section 138 of the Negotiable Instruments Act (‘the Act’, for short).

2. Briefly, the facts of the case are that Dinesh Bansal had submitted a complaint under Section 138 of the Act, and under Section 420 IPC, wherein he had claimed that Rajendra Kumar Agarwal had taken loans from him on different dates. In order to repay the loan; he had given a cheque, bearing No.0422692, dated 14.07.2004, for an amount of Rs. 2,80,182/-. When the said cheque was deposited for encashment, it was dishonoured. Subsequently, the complainant sent a registered notice on 17.07.2004 to the accused-respondent. However, accused-respondent came to the complainant and told him that his economic condition was not too well. Therefore, adding an interest @ 36% for the amount due, the accused-respondent gave him another cheque, Cheque No.422696, for total amount of Rs. 2,97,120 on 14.09.2004. The said cheque was deposited for encashment. However, on 15.09.2004, the said cheque was also dishonoured. Therefore, on 28.09.2004, the appellant sent a registered notice to the accused-respondent, which was

received by him on 29.09.2004. Despite having received the notice, the accused-respondent failed to repay the loan amount.

3. In order to support his case, the complainant examined himself as a witness and submitted nine documents. In turn, although the accused-respondent did not examine any witness, but he did submit two documents. After going through the oral and documentary evidence, vide judgment dated 25.11.2008, the learned Magistrate acquitted the accused-respondent. Hence, this criminal leave to appeal before this Court.

4. Mr. Shambhoo Singh, the learned counsel for the appellant, has vehemently contended that the learned Judge has erred in concluding that the complaint could not be filed against the accused-respondent without arraying the firm, M/s. Rajendra Kumar Bhanwarlal, as an accused. For, according to the learned counsel, the loan had been taken by Rajendra Kumar for his personal necessities, and not for the benefit of the firm. Secondly, the learned Judge was not justified in concluding that the cheque in question could not have included the interest amount. Therefore, according to the learned counsel, the impugned judgment deserves to be interfered with. Mr. Shambhoo Singh has relied on the case of Shankar Finance & Investments v. State of Andhra Pradesh & Ors.1 in order to raise the contention that in case the proprietor has been added as an accused, it is not necessary to array the firm as an accused-respondent. He has further relied upon the case of Rajneesh Aggarwal v. Amit J. Bhalla2 to contend that a notice issued to the proprietor is sufficient for the purpose of Section 138 of the Act. Therefore, according to the learned counsel, the impugned judgment deserves to be interfered with.

5. On the other hand, Mr. Surendra Surana, the learned counsel for the accused-respondent, has vehemently contended that according to the complainant, the loan was taken by Rajendra Kumar for the need of the firm, and not for his personal needs. It was not the case of the complainant that Rajendra Kumar had taken loan for his personal needs. This would be obvious from the testimony of the complainant, Dinesh Kumar Bansal (P.W.1). Secondly, the cheque could not have included the interest amount. Thus, the learned Judge was certainly justified in rejecting the complaint. Hence, the learned counsel has supported the impugned judgment.

6. Heard the learned counsel for the parties, and perused the impugned judgment.

7. The learned counsel for the appellant has contended that the loan amount was taken by Rajendra Kumar, not for the purpose of business of his firm, but for his own personal nec