240(6) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 04.02.2025 SURENDER KUMAR ...APPLICANT V/S CMD ANIS KHAZI ..RESPONDENT CORAM: HON’BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Mukesh Yadav, Advocate for the applicant.

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HARPREET SINGH BRAR , J. (ORAL)

CRM-47136-2023 This is an application under Section 5 of the Limitation Act read with Section 482 of Cr.P.C. for condonation of delay of 83 days in filing the application seeking leave to appeal.

For the reasons mentioned in the application, same is allowed and delay of 83 days in filing the application seeking leave to appeal is condoned.

CRM-A-1581-2023

1. The present application is preferred under Section 378(4) of the Cr.P.C. against the judgment of acquittal dated 25.05.2023 passed by learned Judicial Magistrate Ist Class, Mohindergarh in complaint bearing CIS No.

NACT-26-2017 filed under Section 138 of Negotiable Instruments Act.

2. Applicant in his complaint has averred that he is Permanent Resident of Mohindergarh and that the respondent in discharge of his pre- existing liability had issued the Cheque bearing No. 262686 in the sum of ₹

1,00,000/-drawn on the State Bank of India, Branch Lower Parel Mumbai, Maharashtra of Account No.30024044914. The respondent put his signature on the aforesaid Cheque and assured the applicant that when the applicant wants to obtain the money, he can present the said Cheque and get the same encashed.

The applicant was in the need of money and therefore, the applicant deposited the abovementioned Cheque with his banker for encashment/collection of the amount. However, the said Cheque on presentation was dishonoured with remarks "Insufficient Funds" on dated 16.01.2017. The banker of the applicant returned the original Cheque along with the Bank Return Memo dated 16.01.2017 to the applicant. On dated 20.01.2017, the applicant got issued a Statutory Demand Notice dated 20.01.2017 in accordance with provisions of law through his Counsel vide Registered Post to the respondent on his Permanent Resident. Despite issuance of Statutory Demand Notice, no reply was given nor any payment was made by the respondent, hence, the action for prosecuting him has been initiated by institution of instant complaint on dated 23.02.2017 for commission of offence punishable under Section 138/142 of NI Act.

3. Having heard the learned counsel for the applicant and after perusing the record of the case with his able assistance, it transpires that the applicant has not brought forth any detail regarding any pre-existing liability on the part of the respondent. In his cross-examination, the applicant-Surender had admitted that there was no personal liability of respondent-Anis Khazi, rather the liability was that of company. Thus, the applicant has clearly failed to discharge the initial burden of proving the existence of legally enforceable debt owed by the respondent. Further, the applicant had invested in the different plans of Networth Marketing Pvt. Ltd. Company and his investment did not come into fruition in the way he had hoped, owing to some irregularities on part of the company, causing it to face proceedings before the Stock and Exchange Board of India.

4. Furthermore, in the present case, the applicant has not arrayed Net Worth Marketing Limited as an accused. It has been categorically admitted by the applicant that the liability was of the company and not of the respondent Anis Khazi in his personal capacity. Therefore, it was incumbent upon the applicant to array the company as accused as per Section 141 of NI Act. Moreover, no averment was made in the complaint or in the evidence stating that the respondent was responsible for the conduct of the day to day affairs of the company. Learned trial Court has correctly placed reliance upon the judgment rendered by Hon’ble Supreme Court passed in Sabitha Ramamutrhy and Another Vs. RBS Chanbasavaradhya 2006(10) SCC 581 to conclude that while it is not necessary for the applicant to sp