ORDER :

By way of this appeal, the appellant herein has challenged judgment dated 23.08.2019 passed by the Court of learned Chief Judicial Magistrate, Kullu, District Kullu, H.P. vide which, a complaint filed by the present petitioner under Section 138 of the Negotiable Instruments Act has been dismissed by the learned Trial Court primarily holding that as the cheque in issue was in the name of Sh. Krishna Trading Company, therefore, in terms of the provisions of Section 141 of the Negotiable Instruments Act, in the absence of the company having been impleaded as a party-accused, the complaint was not maintainable. Learned Trial Court has also further held that it appeared that complainant had given an amount to the accused without obtaining receipt and it was highly improbably that any prudent person would hand over such a huge amount without receipt and without preparing any document and therefore also, the complaint against the accused was not maintainable as the complainant had failed to prove that accused had any liability towards him.

2. I have heard learned Counsel for the parties and gone through the record of the case as well as the judgment under challenge.

3. Brief facts necessary for the adjudication of this appeal are as under:-

Proceedings stood initiated by the petitioner complainant against the respondent-accused under Section 138 of the Negotiable Instruments Act on the ground that the complainant and accused were well known to each other and were having friendly terms. The accused owed an amount of Rs. 4.5 lac to the complainant, and in order to discharge his liability, accused issued/handed over the cheque, subject matter of the complaint, to the complainant, dated 03.12.2012. Upon presentation to the bank for encashment, the cheque was dishonoured by the bank on the ground of ‘insufficient funds’. Thereafter, a statutory notice was issued by the complainant to the accused, calling upon him to make good the payment but as the same was not done within the statutory period, this led to filing of the complaint.

4. The complaint was resisted by the accused inter alia on the ground that the cheque in issue was never handed over by the accused to the complainant purportedly in discharge of any liability as there was no liability, which accused owed to the complainant. The defence of the accused was that he had borrowed money from one Khimi Ram, and in lieu thereof, he had given the cheque in issue to Khimi Ram. After he paid back the money to Khimi Ram, said Khimi Ram did not return the cheque back to him and this cheque was probably handed over by Khimi Ram to the complainant, who subsequently misused it.

5. The complaint stands dismissed by the learned Trial Court on account of the reasons which already stand spelled out hereinabove.

6. This Court is of the considered view that the judgment passed by learned Court below is not sustainable in the eyes of law. The cheque in issue is on record as Ext. CW1/B. Persual thereof demonstrates that the same has been signed by the accused in his capacity as the ‘proprietor’ for Sh. Krishna Trading Co. This Court has observed so because a perusal of the cheque demonstrates that the same has been signed by the accused in his capacity as ‘proprietor’ of the firm concerned and the signatures of the accused on the cheque are not disputed by the accused.

7. As already mentioned hereinabove, the complaint inter alia has been dismissed by the learned Trial Court on the ground that as the cheque pertained to a Company, therefore, as provisions of Section 141 of the Negotiable Instruments Act were not complied with, as such, the complaint was not maintainable. This Court is of the considered view that in the absence of there being any evidence on record that the cheque in issue was indeed belonging to a company, these findings which have been returned by the learned Trial Court, are perverse findings. In fact, this was neither the defence of the accused nor a perusal of the cheque prima fa