JUDGMENT :

Z.K. Saiyed, J.

The present appeal under section 378 of the Code of Criminal Procedure, 1973 is filed by Surendranagar Mercantile Co-operative Bank Ltd., against the judgment and order of acquittal dated 6.7.2007 passed by the learned Judicial Magistrate, First Class, Surendranagar in Criminal Case No. 631 of 2001 whereby the accused has been acquitted of the charges under section 138 of the Negotiable Instruments Act.

2. Brief facts of the prosecution case are that the appellant granted term loan of Rs. 1,50,000/- on 26th August, 2000 to respondent No. 2 herein. The respondent No. 2-original accused gave post dated cheques of R. 10,000/- for the payment of instalments for repayment of the loan and out of the said cheques, three cheques of Rs. 10,000/- each were returned unpaid on account of insufficient funds. The appellant therefore, served a legal notice to respondent No. 2, but the respondent No. 2 failed to make the payment. Therefore, the appellant filed the complaint before the learned Magistrate being Criminal Case No. 631 of 2002.

3. Therefore, a complaint with respect to the aforesaid offence was filed against the respondent in the Court of the learned Judicial Magistrate, First Class, Surendranagar. Plea of the complainant as well as that of the accused was recorded.

4. With a view to prove the case against the respondent-accused, the complainant had led oral as well as documentary evidence. The complainant has examined two witnesses and also produced documentary evidence in support of its case at exhs. 36 to 38. After the trial, after recording statement of the accused persons under section 313 of the Criminal Procedure Code, and after hearing arguments on behalf of complainant and the defence, the learned Judicial Magistrate, First Class, Surendranagar has acquitted the respondent-accused of all the charges levelled against him by the judgment an order dated 6.7.2007.

5. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the learned Judicial Magistrate, First Class, Surendrangar, the appellant has preferred the present appeal.

6. Heard learned Advocate Mr. Y.B. Vaghela for Mr. Pankaj Champaneri, learned advocate for the appellant. He has contended that the complainant has proved the case against the respondent-accused beyond all reasonable doubt. It is also contended that the complainant has also proved documentary evidence to prove its case. He has also vehemently argued that the learned trial Judge has not considered the oral as well as documentary evidence produced by the complainant. Learned advocate Mr. Vaghela has read the contents of exh. 84 and has vehemently argued that exh. 84 should be considered as a letter of authority.

I have also heard learned advocate Mr. Sharma for respondent No. 2-original accused. He has vehemently argued that the if the letter of authority is not on record or if the complainant is unable to prove that he is an authorised person to file a complaint, then the complaint cannot be entertained under the provisions of section 138 of the Negotiable Instruments Act.

I have also heard learned Additional Public Prosecutor Mr. A.J. Desai for the respondent No. 1 State. He has fairly admitted that it is an established law that just to file a complaint under section 138 of the Negotiable Instruments Act, a person is required to be authorised by that particular firm. He has also contended the letter of authority is required to be given in a prescribed manner to the effect that a particular person is authorised to file a complaint against the accused for the act committed by a particular person. He fully agrees with the observations made by the learned trial Judge that the letter of authority was not produced before the learned trial Judge.

7. At the outset, it is required to be noted that the principles which would govern and regular the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained b