JUDGMENT :

By way of this appeal, the appellant has challenged the judgment passed by the Court of learned Judicial Magistrate 1st Class, Solan, District Solan, Himachal Pradesh in Complaint No. 106/3 of 2004, dated 30.03.2010, vide which respondent-accused stand acquitted for commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

2. Brief facts necessary for adjudication of the appeal are that complainant/appellant is a duly incorporated and registered Company under the Indian Companies Act, 1956 having its registered office at Chambaghat, Tehsil and District Solan, H.P. with the Registrar of Companies at Jallandhar vide Registration No. 0608245 dated 05.04.1988. Earlier the Complainant-Company was named known as ‘Himalyan Plastic Private Limited’ and later on it was converted into a ‘Limited Company’ under Sections 31/44 of the Companies Act, 1956 vide order of the Registrar of Companies dated 05.01.2001. As such, now it is known as ‘Himalyan Plastic Limited’. All the liabilities, rights, assets etc. of M/s Himalyan Plastic Private Limited have been taken over by M/s Himalyan Plastic Limited. The Complainant-Company has its registered office and works at Chambaghat, Tehsil, and District Solan H.P. Sh. Madan Sharma is the Managing Director and responsible officer of the Company and he is duly authorized and is competent to maintain this appeal, adduce evidence to depose on oath and to engage the services of counsel and generally to do all lawful acts, deeds and things which may be necessary for the said purpose. The present complaint has been filed through Sita Ram Verma, who has been duly authorized through a general power of attorney by the Managing Director of the complainant Company, Madan Sharma. The Complainant-Company deals in the business of manufacturing and sale of HDPE Pipes, fittings, sprinkler, drip irrigation systems, PIR( Silicon coated) HDPE Telecom. Duct. The accused was earlier purchasing the above material on credit basis form the Complainant-Company as per the business practice. In order to discharge the part of the liability and for consideration, the accused issued cheque duly signed by him in favour of Complainant-Company bearing Cheque No. 608301 on 23.6.2003 for Rs.11,79,500/- drawn on PNB Haily Mandi, Gurgaon, Haryana on his account No. 752 with the assurance that the same would be honoured on its presentation under its bank in all circumstances. Accordingly, complainant deposited the said cheque in the State Bank of India, The Mall Solan for encashment. The said banker of the Complainant-Company forwarded the said cheque to the drawee bank for presentation/realization, but to the utter surprise of the Complainant-Company, the said cheque was returned as unpaid by the drawee bank vide its cheque returning memo dated 22.8.2003, indicating the reason “insufficient funds” and this information was given to the complainant-Company by the State Bank of India, The Mall Solan vide letter dated 27.8.2003. The said Cheque was dishonoured by the drawee bank due to insufficiency of funds to the credit of accused. After the receipt of the said cheque as unpaid, complainant company issued a registered AD notice dated 9.9.2003 sent on 10.09.2003 at two correct addresses of the accused requiring him to make the payment of the said dishonoured cheque to the complainant company within 15 days from the receipt of the notice. Notice was also sent separately under postal certification. The notices were duly received by the accused on 15.9.2003, but in spite of having received the notices, the accused failed to make the payment of the dishonoured cheque to the Complainant- Company. The period mentioned in the notice expired on 30.9.2003. Since the accused had failed to make the payment of the dishonoured cheque within the 15 days from 15.9.2003 and the period mentioned in the notice expired, so the accused is guilty of offence punishable under Section 138 of the Act. It has also been sta