Rajesh H. Shukla, J.

1. As it is First Appeal, R & P was ordered to be called for and the matter has been taken for final hearing with the consent of both sides.

2. The present appeal is directed against the impugned judgment and order passed in Special Civil Suit No. 61/2005 by the Additional Sr. Civil Judge, Bharuch dated 31.08.2012 dismissing the suit filed by the appellant-plaintiff.

3. The facts of the case briefly narrated and stated as under:-

"3.1 The plaintiff is a partnership firm duly registered under the Indian Partnership Act, 1932 and doing business of shroff and commission agent. The defendant is a Company registered under the Companies Act, 1956. It is averred that the defendant-company as and when needed financial assistant used to approach the plaintiff-firm. The defendant company approached in the year 2002 and presented the cheque in question. The cheque was duly signed by the authorized signatory and, hence, the plaintiff firm have discounted the cheque and paid the cash amount on the said date. It is also averred that the defendant has also signed the discount voucher duly stamped. However, the defendant company had requested not to deposit the cheque and, therefore, it was not deposited. However, when the defendant company failed to make the payment, suit came to be filed for recovery of the amount from the defendant company. It is also stated that the defendant company presented the cheque for encashment on 09.05.2002 and because of the action arose.

3.2 However in response to the summons and notice of the suit, written statement came to be filed at Exh. 13 contending that the suit of the plaintiff is not maintainable as no cause of action has arisen. The suit of the plaintiff is barred by limitation as mis-joinder and non-joinder of the parties. It has been contended that the plaintiff has not produced necessary evidence of registration of the firm and is not holding the license under the Money Lenders Act. It is denied that the defendant company is facing financial crises and had approached the plaintiff company resulting in the transaction as stated above. It is contended that it is not true that the defendant company had given cheque of Central Bank of India dated 09.05.2002 of Rs. 10.00 lacs signed by the authorized signatory of the defendant company and it was discounted as alleged. It is specifically contended that the management of the company consists of Managing Director and Director and employees of the defendant company is not falling within the category of management. It is also contended that the defendant company is likely to file criminal complaint against the related persons for any such steps taken for the company.

3.3 Therefore, the Court below framed the issues and proceeded with the trial.

3.4 On the basis of the appreciation of material and evidence, the Court below dismissed the suit which led to filing of the present appeal on the grounds stated in the memo of appeal."

4. Heard learned advocate, Shri Shashwat Shukla for the appellant and learned advocate, Shri Harsh Parekh for the respondent.

5. Learned advocate, Shri Shukla referred to the material and evidence from the R & P including the observations made in the judgment and also deposition of the witnesses. He pointedly referred to Exh. 61, evidence of Shri Sunil Saini and submitted that the Court below has committed an error in believing the execution of the cheque signed by the office of the respondent-Company. He submitted that the court below has proceeded on the assumption. He submitted that the presumption could have been made as provided under Section 118 of the Negotiable Instrument Act. He referred to the provision of Section 118 of the Negotiable Instrument Act. He also submitted that though the defendant has denied the execution of the cheque, no other contention has been taken. He also referred to the affidavit at Exh. 28 on behalf of the appellant-original plaintiff and submitted that the affidavit of the plaint