IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 6th DAY OF DECEMBER, 2021 BEFORE HON’BLE MS. JUSTICE JYOTSNA REWAL DU.A CRIMINAL APPEAL No.200 of 2019 Between:-

M/S R.V. HARDWARE &

SANITARY STORES HAVING PARTNERSHIP FIRM AT MODEL TOWN MANALI, P.O. &

TEHSIL MANALI, DISTRICT KULLU, H.P. THROUGH SPA SHRtI HEM RAJ SON OF SHRI BAM DErV SHARMA, RESIDENT OF MODEL TOWN MANALI, POST OFFICE & TEHSIL MANALI, DISTRICT KULLU, H.P.

o …..APPELLANT (BY SH. MAAN SINGH, ADVOCATE)

AND SHYAM DASS SON OF SHRI TIKKAM RAM ALIAS TIKA RESIDENT OF VILLAGE AND POST OFFICE VASHISHT TEHSIL MANALI, DISTRICT KULLU, i HIMACHAL PRADESH.

…..RESPONDENT (SH. ADARSH K. VASHISTA, ADVOCATE.)

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This petition coming on for hearing this day, the Court passed the following:

J U D G M E N T This appeal arises out of the judgment passed by learned Judicial Magistrate 1st Class, Manali, District Kullu, on 27.03.2019, whereby, the respondent/accused was acquitted of the charges for the commission of offence under Section 138 of Negotiable Instruments Act.

2. I have heard learned counsel for the parties and gone through the record of the case. H

3. A criminal complaint under Section 138 of the Negotiable Instruments Act was filed by the firmf M/s R.V. Hardware & Sanitary Stores through one Sh. Hem Raj. The complaint was in relation to a cheque allegedly issued by the respondent. Learned trial Court has acquitted the respondent vide impugned judgment. The reasons for acquittal of the respondent as recorded by learned trial Court are that (i) the complainant/appellant had not produced the regisCtration certificate of the firm on record;(ii) there was no document on record to show about Sh. Rinchen Thomas being the managing partner in the complainant firm and Sh. Rincghen Thomas having further authorized Hem Raj to file the icomplaint. Relevant part of the impugned judgment reads as under:-

“15 Coming to case in hand, in the present case, the complaint has been filed by SPA and the Power of Attorney has been given by Rinchen Thomas as managing partner of the said firm, as the cheque was in name of firm, therefore, the first thing which was required to prove is that the Rinchen Thomas was partner of the Firm and had authority to appoint SPA for the purpose of dealing with the matter related to the said Firm. In the present case, no registration certificate of the Firm had been produced on record nor there is anything to show that Rinchen Thomas was himself a managing partner in the said Firm. First thing which was required to be proved was that the complainant was holder in due course and was having authority to file the complain.t on behalf of the Firm, however, the relationship of firm wPith the Rinchen Thomas as managing partners has not been established on record and there were two partners in the firm as per CW-1 nor there is anything to show that he was having authority to appoint said SPA for the purpose of filing of the complaint and hence, it can be safely stated that it has not been proved that he was aouthorized person for the purpose of filing the complaint.”

4. During hearing of the case, learned counsel for the appellant invited attention to Crr.MP No.758 of 2019 filed by the applicant/appellant under Section 391 of Code of Criminal Procedure for placing on record certain additional documents. The documents soughtC to be produced through this application are: (i) partnership deed dated 09.10.2009, whereunder Sh.Rinchen Thomas his stated to be one of the partners of the firm M/s R.V. Hardgware & Sanitary Store; (ii) resolution dated 24.04.2016, whereunder, Sh.Rinchen Thomas has been authorized to be the managing partner of the firm; and (iii) authorization letter dated 20.05.2016, whereunder, Sh.Rinchen Thomas has allegedly authorized Hem Raj to issue notice as well as to file complaint under Section 138 of NI Act in respect of the dishonour of cheque No.374674 dated 30.04.2016.

5. Learned counsel for the p