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IN THE HIGH COURT OF JUDICATURE FOR

RAJASTHAN AT JODHPUR

Ashok Leyland Finance Limited.

Vs.

The State of Raj. & Anr.

S.B. CRIMINAL LEAVE TO APPEAL NO.224/2011

S.B. Criminal Leave to Appeal

No. 224/2011 filed under

Section 378(4) Cr.P.C. against

the judgment dated 10.08.2011

passed by Special Judicial

Magistrate, N.I. Act Cases, No.2,

Udiapur

in

Cr.

Regular

Complaint Case No. 2843/2009.

Date of Judgment:

15.2.2012

HON'BLE MR. JUSTICE R.S. CHAUHAN

Mr.Davendra Mahlana, for the appellant.

Mr.O.P.Singharia, PP.

The appellant, Ashok Leyland Finance

Limited, is aggrieved by the judgment dated 10.8.2011

passed by Special Judicial Magistrate, N.I. Act Cases,

No.2, Udaipur, whereby the learned Magistrate has

acquitted Pratap Singh, respondent No.2, of offence

under Section 138 of the N.I.Act ('the Act' for short).

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Briefly, the facts of the case are that the

appellant-company, was registered as

financial

institution to provide loan for buying vehicles.

According to it, the accused-respondent took a loan of

Rs. 8,60,000/- for buying a vehicle, registered as RJ-

27-G-7121. The accused-respondent was required to

pay a total amount of Rs. 10,89,630/- in thirty-five

installments. However, as the accused-respondent

failed to pay the said amount, the vehicle was

repossessed by the appellant; subsequently, it was

sold in auction. According to the appellant, the

accused-respondent had given a cheque, cheque no.

743390 dated 3.2.2006 for amount of Rs. 2,94,892/-.

But when the said cheque was submitted for

encashment, it was dishonoured. Therefore, the

appellant sent a registered notice to the accused-

respondent. However, the said notice was returned

with the noting that the accused-respondent no longer

lives at the address. According to him, the cheque

amount was never repaid by the accused-respondent.

Therefore, the complaint under Section 138 of the Act.

In order to buttress its case, the appellant

examined K.Shriniwasan (P.W.1), and submitted nine

documents. Although the accused-respondent did not

examine any witness, but he did submit four

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documents. After going through the oral and

documentary evidence, vide judgment dated 10.8.2011

the learned Magistrate acquitted the accused-

respondent. Hence, this criminal leave to appeal

before this Court.

Mr. Davendra Mahlana, the learned counsel

for the appellant, has vehemently contended that the

learned Judge has failed to see the difference between

a wind-up of a company, and a merger of the

company. Although, Ashok Leyland Finance Limited

had merged with the Indusind Bank, as the division of

the bank, but the finding given by the learned

Magistrate that after its merger in Indusind Bank, it

stopped existing as a legal entity, is misplaced.

Moreover, the power of attorney was given as far

back as 1998. K.Sriniwasan (P.W.1) was an

authorised person to file the complaint against the

accused respondent. Hence, the conclusion drawn by

the Magistrate that K.Sriniwasan (P.W.1) was not a

duly authorised person is without any basis.

Furthermore, even if the company had not submitted

its statement of account, it was obvious from the

testimony of K.Sriniwasan (P.W.1), that the cheque

amount was with regard to the discharge of the loan

taken by the accused respondent. Lastly, learned

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Magistrate has failed to invoke the presumption under

Section 139 of the Act against the accused respondent.

Hence, the learned Magistrate has committed grave

illegality in acquitting the accused respondent.

Heard the learned counsel for the appellant,

and perused the impugned judgment.

The first contention raised by the learned

counsel is highly misplaced. Since it was the case of

the appellant itself that the Ashok Leyland F