IMPORTANT POINT
When offence punishable under Section 138 of Negotiable Instruments Act is under consideration, trial Magistrate ought to address itself on questions raised by complainant as also by accused.

A.P. Bhangale, J.—This Appeal is directed against an order of discharge in favour of the respondent-accused namely; Nishikant Narayan Shastri of offence punishable under Section 138 of the Negotiable Instruments Act. The impugned judgment and order was passed by learned Judicial Magistrate First Class and Special Court under Section 138 of the Negotiable Instruments Act, Nagpur on 22/05/2007 in Misc. Criminal Case No. 2942 of 2005.

2. Heard submissions at the bar.

3. My attention has been invited to the points for determination in the impugned Judgment, which were framed as under: -

(i) Whether the holder of disputed cheque or the person who has to take the amount of the disputed cheque (payee) has filed the complaint under Section 142 of the Negotiable Instruments Act against the accused.

(ii) Whether the complainant has filed his complaint within time. Both the questions were answered in negative.

4. My attention is also invited to the fact that complaint was instituted by Ajit Manikchand Kotecha, Manager of the Kochar Finance, Nagpur mentioning that the complainant is a Manager and the complaint is being filed through authorized person Shri. A. M. Kotecha, who is holding a Special Power of Attorney from Proprietor of the Company namely; Shri Gautam Inderchand Kochar. The accusations were that a cheque bearing No. 020841 for Rs. 60,000/-, drawn on The Nagpur Mahila Nagri Sahakari Bank Limited, Dharampeth Branch, Nagpur on 05/07/1994 was presented for collection but it was returned dishonoured with an endorsement “refer to drawer” under bank intimation dated 21/12/1994. Thereafter, it is the case of the complainant that he was given an assurance regarding payment by the accused who executed Hundi on 27/10/1994 in favour of the complainant but the accused had failed to make the payment of complainant’s Finance Company. Therefore, legal notice dated 01/01/1995 under Section 138 of the Negotiable Instruments Act was served to the accused on 10/01/1995. The accused also gave reply to the notice and denied his liability. The question raised on behalf of the accused is; as to whether the complaint was filed by an authorized person in accordance with law and is maintainable under Section 138 of the Negotiable Instruments Act. While on behalf of the complainant question is raised as to whether a fresh cause of action will arise since the accused executed the ‘Hundi’ assuring payment based upon Hundi with reference to cheque issued earlier. The complainant had prayed for an action against accused under Section 138 of the Negotiable Instruments Act read with Section 420 of the Indian Penal Code. The impugned judgment and order appears silent in respect of deciding the above questions. Apea1497.2007

5. Notwithstanding the fact that there was an affidavit sworn in by Proprietor of Kotecha Finance namely; Shri. Gautamchand Inderchand Kochar and on that basis the deponent was cross-examined. It also appears that one ‘Hundi’ was produced which is at Exh.49, dated 05/04/94 with due date mentioned as 05/07/94.

6. According to learned Advocate for the complainant, no reference was made to this exhibit and the contentions raised above about the ‘Hundi’ executed by the accused were ignored by learned trial Judge.

7. Learned Advocate for the respondent-accused relies upon ruling in the case of Shankar Finance & Investments v. State of Andhra Pradesh & Ors.1, wherein there are guidelines from the Apex Court regarding the complaints lodged by proprietor concerned through the attorney holder. In subsequent ruling in the case of Praveen v. Mohd. Tajuddin2 in which ruling in Shankar Finance & Investments (cited supra) was referred and it was held that complaint under Section 138 of the Negotiable instruments Act can be filed by the payee through his Power of Attorney holder. Reference is also made to ruling in the case of Sadanandan Bhadran v. Madhavan Apeal 3497. 2007 Sunil Kumar3 regarding maintainability of the complaint as also nature