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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
NARENDRA KUMAR VYAS
Monalisa Agrawal, W/o. Shri Ajay Kumar Agrawal – Appellant
Versus
Devanand Patel, S/o. Shri Shoukilal Patel – Respondent
Judgment :
Narendra Kumar Vyas, J.
1. This acquittal appeal has been filed under Section 378 (4) of the Code of Criminal Procedure, 1973 against the order dated 30.07.2018 in Criminal Appeal No. 54 of 2018 and in Criminal Appeal No. 72 of 2018 passed by 5th Additional Session Judge, Raigarh by which the learned 5th Additional Sessions Judge has set aside the judgment passed by Judicial Magistrate First Class,Raigarh in Criminal Appeal No. 891 of 2012 and acquitted the accused/respondent No.1 in CRA No. 54/20128 of the charge under Section 138 of the Negotiable Instrument Act and dismissed the CRA No. 72 of 2018 filed by the complainant.
2. Facts of the case, in brief, are that the complainant is running her business in the name and style of Mahalaxmi Tractors through its power of attorney holder Brij Mohan Agrawal. The complainant filed complaint under Section 138 of the Negotiable Instrument Act (hereinafter referred to the Act) through its power of attorney holder mainly contending that:-
(a) The accused has purchased one tractor along with tractor accessories namely Hydrolic Tractor trolley valued at Rs. 5,95,000/- on 22.05.2008 on credit with an understanding between them that the
Power of attorney holders can file cheque dishonour complaints if they possess personal knowledge of the transaction; absence of such knowledge may invalidate the complaint.
(1) Dishonour of cheque – In cases where payee/complainant is company, all that is necessary to be demonstrated before Magistrate is that complaint is filed in name of payee.(2) Dishonour of cheque ....
Punishment under Section 138 of Act is not a means of seeking retribution but a means to ensure payment of money.
The main legal point established in the judgment is that a complaint filed by a company under Section 138 of the Negotiable Instruments Act must be in the name of the company and can be represented b....
The presumption under Section 139 of the N.I. Act in favor of the complainant regarding legally enforceable debt remains unless the accused proves otherwise.
A power of attorney holder cannot file a complaint under Section 138 N.I. Act in his own name; he must act on behalf of the principal and possess knowledge of the transaction.
A person who is not a signatory to the cheque cannot be prosecuted under Section 138 of the Negotiable Instruments Act, 1881, for the offence of dishonour of cheque for insufficiency of funds.
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