IMPORTANT POINT
Cognizance of offence--There is special provisions under Section 142 of Act regarding mode and manner in which cognizance would be taken--Provisions of Section 190 Cr.P.C. not applicable.

Sham Sunder, J.:- This appeal, is directed against the judgement of acquittal dated 13.08.1993, rendered by the Court of Sub Divisional Judicial Magistrate, Amloh, vide which, it acquitted Sanjiv Kumar, accused, of the offence, punishable under Section 138 of Negotiable Instruments Act, 1881 (Amended upto date) – (hereinafter to be called as the ‘Act’ only).

2. A criminal complaint, under Section 138 of the Act, was filed by M/s Surindera Steel Rolling Mills, Mandi Gobindgarh, (complainant – now appellant), through Ram Sarup, its Manager, on the allegations, that the accused purchased re-rolling material from it, vide bill No. 880, dated 20.12.1989 of the value of Rs. 3,58,449/-. This amount was carried forward to the next financial year i.e. 1990-91. Against the amount of this bill, the accused, being proprietor of firm M/s Prompt Steel, issued a cheque No. 0718342 in the sum of Rs. 60,000/-, dated 10.11.1990, by way of part payment, in favour of the complainant firm, assuring that the same would be honoured. When the cheque was presented to the bank, by the complainant, through its bankers, the same was returned dishonoured, by the Union Bank of India, Mandi Gobindgarh, with the remarks “refer to drawer”, meaning thereby that there was no arrangement to pay the amount of the said cheque. Thereafter, the complainant, served a statutory notice, upon the accused, asking him to make the payment of Rs. 60,000/-, of the cheque, in question, within a period of 15 days, from the date of receipt of the said notice, which was delivered to him on 21.12.1990. Despite service of notice, payment was not made.

3. After going through the preliminary evidence, the accused was summoned for the offence, punishable under Section 138 of the Act.

4. On appearance of the accused, he was supplied a copy of the complaint. Notice, under Section 138 of the Act, was served upon him, to which he pleaded not guilty.

5. Ram Sarup, Manager of the Company, through whom, the complaint was filed, appeared as, PW1. Yashpal Singla, appeared as PW2, whereas, Atul Kumar Singla, Hand Writing and Finger Print Expert, Patiala, appeared as, PW3. Thereafter, the complainant closed its evidence.

6. The statement of the accused, under Section 313 Cr.P.C., was recorded, wherein, he admitted having purchased the goods, from the complainant. He also admitted that he issued the cheque, in question, which was dishonoured. It was stated by the accused, that it was a post-dated cheque. It was further stated that since all the goods were not supplied, a civil suit for damages, was filed by him. He also stated that he did not give the cheque, as a part payment.

7. In defence, the accused examined Shanti Sarup, DW1, and Krishan Kumar, DW2. Thereafter, he closed the defence evidence.

8. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, came to the conclusion, that the complaint had not been filed, through a competent person and, as such, was not maintainable. Ultimately, the accused was acquitted, on this sole ground.

9. Feeling aggrieved, the instant appeal, was filed, by the complainant/appellant.

10. I have heard the Counsel for the parties, and have gone through the record of the case, carefully.

11. The Counsel for the appellant, at the very outset, submitted that the trial Court, was completely wrong, in coming to the conclusion, that Ram Sarup, was not a duly authorized/ competent person, to file the complaint, on behalf of the complainant. He further submitted that Ram Sarup, being the Manager of the complainant firm, was duly competent to file the complaint. He further submitted that Ram Sarup, being the Manager and, as such, the Officer of the firm, could file the complaint. He placed reliance on M/s M.M.T.C. Ltd. Vs. M/s Medchl Chemicals & Pharma (P) Ltd., 2002(1), RCR (Criminal), 318 (SC), Raghu Lakshminarayanan Vs. M/s Fine Tubes, [2007(2) LAW HERALD (SC) 1328] : 2007(2), RCR (Criminal) 571 (SC), Sri Vasa