Point of Law: Code of Criminal Procedure gives power to appellate court to take additional evidence, which for reasons to be recorded, it considers necessary and Code gives wide discretion to appellate court to deal appropriately with different cases, but for that, again failure of justice is a condition precedent.

JUDGMENT :

Instant appeal filed under S.378 CrPC lays challenge to judgment dated 30.4.2009 passed by learned Judicial Magistrate First Class, Badsar, Hamirpur, Himachal Pradesh, whereby Pvt. Complaint No. 32-I-2007 titled Sonu Soap Factory v. Smt. Meera Devi, having been filed by the appellant/complainant (hereinafter, ‘complainant’) came to be dismissed on the ground that the complainant has failed to prove by leading cogent and convincing evidence that he is proprietor of M/s Sonu Soap Factory, in whose favour, the cheque was issued by the respondent-accused (hereinafter, ‘accused’).

2. Precisely, the facts of the case, as emerge from the record, are that complainant, which is a proprietorship concern, instituted a complaint under S.138 of the Negotiable Instruments Act, in the competent court of law, through its proprietor, Shri Amar Singh, alleging therein that the accused was doing business of manufacturing soap at her Unit situate in Village Hamout, Post Office Hatwar, Tehsil Ghumarwin, District Bilaspur and she used to take raw material from the complainant. Complainant alleged that on 23.11.2006, it supplied raw material amounting to Rs. 25,782/- through vehicle No. HP-67-614 and the accused, with a view to discharge her liability, issued cheque bearing No. 5346513 dated 22.11.2006 amounting to Rs. 25,782/- drawn on Himachal Pradesh State Cooperative Bank Limited, Bum, Tehsil Ghumarwin, District Bilaspur. However, facts remains that cheque on its presentation, was dishonoured by the Banker of the accused, on account of insufficient funds and returned the same vide memo dated 12.12.2006. It is averred that the complainant sent a legal notice to the accused on 29.12.2006 but yet she failed to make good the payment. Since despite having received legal notice, accused failed to make good the payment to the complainant, complainant was compelled to institute proceedings under S.138 of the Act. Learned trial Court on the basis of evidence led on record by respective parties, dismissed the complaint on the ground that the complainant has not been able to prove his proprietorship qua the concern namely M/s Sonu Soap Factory, to whom accused had allegedly issued cheque in lieu of discharge of her liability. In the aforesaid background, complainant has approached this court in the instant appeal, praying therein to restore his complaint, with the direction to the court below to decide the same on its merits.

3. During the pendency of the present appeal, complainant also filed CrMP No. 510 of 2022 under S. 391 CrPC, seeking permission to lead additional evidence. Since prayer made in the said application, if allowed, would have a direct bearing on main appeal, application was taken up alongwith main appeal and is now being disposed of vide this judgment.

4. If the complaint filed under S. 138 of the Act is perused in its entirety, this court finds force in the submission of learned counsel for the respondent that, at no point of time, complainant claimed/projected himself to be proprietor of M/s Sonu Soap Factory. Though, cause title of complaint though suggests that the complaint was filed by M/s Sonu Soap Factory through its Proprietor Shri Amar Singh but such fact never came to be pleaded in the complaint. Similarly this court finds that Amar Singh, complainant, while tendering evidence by way of affidavit, again failed to specifically state that he is the proprietor of M/s Sonu Soap Factory, however in his cross-examination, while answering suggestion put to him, that he is not the proprietor of M/s Sonu Soap Factory, complainant categorically claimed himself to be proprietor of M/s Sonu Soap Factory. Material available on record, clearly reveals that the complainant successfully proved on record that the cheque amounting to Rs. 25,782/- issued in favour of M/s Sonu Soap Factory by the accused was returned on account of insufficient funds. Similarly, this court finds that the complainant after having received return memo from th