The main legal point established in the judgment is the requirement of a certificate under Section 65B of the Indian Evidence Act for the admissibility of electronic records.

JUDGMENT :

Mukta Gupta, J.

Crl. M.A. No. 11285/2019 (Exemption)

Exemption allowed subject to just exceptions.

Crl.M.A. No.11284/2019 (Delay)

For the reasons stated in the application delay of 39 days in filing the leave to appeal petition is condoned.

Application is disposed of.

CRL.L.P. 344/2019

1. Aggrieved by the judgment dated 11th February 2019, whereby the learned Metropolitan Magistrate acquitted the respondent for the offence punishable under Section 138 Negotiable Instruments Act, 1881 the petitioner/complainant has preferred the present leave petition.

2. Briefly stated, the facts of the present case as per the complaint are that the complainant/petitioner is a company duly incorporated under the Companies Act and is in the business of manufacture and sale of consumer electronics and home appliances with the brand name of "Samsung" and is represented by its AR/Assistant Manager Manish Aggarwal. Respondent No.1 is a partnership firm and respondent no.2 to 6 are partners in the firm. The petitioner company had appointed respondent firm as its dealer for Samsung products pursuant to which the respondent firm placed orders for supply of various home appliances which were supplied by the petitioner company against which a running account of the respondent firm was maintained by the petitioner company.

3. At the time of appointment of the respondent firm, it had issued a letter enclosing two duly signed cheques bearing no. 569323 and 569324 drawn on Union Bank of India, Somajiguda, Hyderabad to the petitioner with an understanding that in the event of any amount due and payable by the respondent firm to the petitioner company, the petitioner company shall be authorized to fill up the date and such amount on the cheque as remains unpaid by the respondent firm. The cheques were duly signed by respondent no.5 and were issued with the consent of respondent no.2, 3 and 4. It was also agreed between the parties that in case the respondent firm changed the signatory of the cheques or closed the account, the respondent shall replace the aforesaid cheques by providing the petitioner with new cheques either from the same account or from a new account as the case may be.

4. On 14th November 2011 there was an outstanding balance of Rs.35,06,831/- which was due and payable by the respondent firm. Even after reminders, the respondent firm failed to make the payment. Pursuant to the agreement, the petitioner filled up cheque bearing no.569323 with the outstanding amount of Rs.35,06,831/-. On presentation of the aforesaid cheque, it was dishonoured with remarks "funds insufficient" vide bank return memo dated 28th November 2011. Legal demand notice dated 22nd December, 2011 was sent to the respondent firm. Respondent no.2 and 4 sent a reply dated 28th December 2011 and 30th January 2012 respectively denying their liability towards the cheque in question. Despite the service of legal notice, the respondent firm failed to make the payment. Hence the complaint was filed by the petitioner.

5. Notice under Section 251 Cr.P.C. was framed against the respondents to which they pleaded not guilty and claimed trial. In their reply to the notice, respondent no.2 and 3 stated that they had retired from the respondent firm prior to the date of the present offence. Respondent no.4 stated that the disputed cheque did not bear his signature and no legal notice was served upon him. Respondent no.5 stated that the disputed cheque was given at the time of the agreement without filling any amount in it and the petitioner company has not followed due business process before submitting the said cheque to the bank.

6. Petitioner company examined its authorized representative Manish Agrawal as CW-1 who filed his evidence by way of affidavit Ex.CW-1/3. He relied upon the copy of the power of attorney of the petitioner company vide Ex.CW-1/1, letter issued by the respondent firm vide Ex.CW-1/4, statement of account of respondent firm maintained by the petitioner company vide E