SURESH SHARMA Vs. NEW COOLWELL INDUSTRIES

JUDGEMENT

(1.) THE appellant in this matter is aggrieved by the order passed by a learned Metropolitan Magistrate dated 16. 03. 2006 whereby, he dismissed the complaint filed by the appellant, by holding that the complaint filed by the appellant in his personal capacity cannot be treated as a complaint by m/s. Jiya Lal Sumair Chand Jain, the payee of the cheques in question. The relevant portion of the order subject matter of the appeal is reproduced for the sake of the understanding the matter. 9. I have heard the arguments of both the parties and perused their written as well as oral submissions. The perusal of the cheques ex. CW1/2 and Ex. CW1/3 shows that the cheques have been issued by the accused No. 1 in favour of M/s. Jiya Lal Sumair Chand Jain and the same were presented for encashment to the banker of the firm and returned back unpaid vide Debit Advise Ex. CW2/1 and Ex. CW2/2. The document Ex. CW1/1 relied upon by the complainant during the exami-nation of the GW1 shows that M/s. Jiya Lal Sumair Chand Jain is the partnership firm and the cheques were issued in its favour and the partner of the firm has authorized the manager (account) of the firm to initiate legal proceedings against the accused with regard to the cheques in dispute. Even the legal notice Ex. CW1/4 was issued on behalf of the firm m/s. Jiya Lal Sumair chand Jain. All the documents proved by the com-plainant clearly suggest that the firm M/s. Jiya Lal Sumair Chand Jain payee of the cheque and the firm was having cause-of-action in its favour to initiate the proceedings against the accused for dishonor of the cheque ex. CW1/2 and Ex. CW1/3. The eligibility criterion prescribed by Section 142 of Negotiable Instrument Act is that the complaint under Section 138 must be by the payee or the holder in due course of said cheque. The complaint was required to be filed in the name of the firm, who is the payee of the cheque, but the present case has been filed by one Shri Suresh Sharma in his personal capacity just on the basis of document Ex. CW1/1. The things would have been different, if the case would have been filed on behalf of the partnership firm in the capacity of complainant. Because of, the acts of the Authorized Representative may be ratified subsequently but the defect in the complaint cannot be ratified subse-quently by the firm. A person may be authorized to initiate criminal prosecution on behalf of the firm, but right to initiate criminal prosecu-tion cannot be transferred in favour of anyone. The complainant in the present case is neither the payee nor the holder of the cheque in the due course as no cheque has been issued in his favour. The complainant to the present complaint has no concern with the accused in his personal capacity as the accused have never committed any offence towards him. The witnesses examined by the complainant are also to the effect that the accused No. 1 and M/s. Jiya Lal Sumair Chand Jain were maintain-ing the account with the Union Bank of India and Indian Overseas Bank respectively, but the complainant has failed to prove that the cheques in dispute were issued in his favour and the same were presented by him and dishonoured on presentation. Even during the course of arguments, the complainant has failed to prove, how he has become the holder of the cheque in due course without impleading the partnership firm as com-plainant. In the absence of firm M/s. Jiya Lal Sumair Chand Jain, the complainant has no locus-standi to file the present complaint as he has no cause of action in his favour to initiate the criminal proceedings against the accused. 11. After considering the material available on record, I am of the considered opinion that the complaint filed by the complainant of the present complaint is not maintainable and the same deserve dismissal. I hereby dismiss the complaint filed by the complainant, Sh. Suresh sharma and acquit all the accused persons from the charges leveled against them. The bail bond stands cancelled. Surety discharged. File be consigned to Record Room.

(2.) THE appellant has assailed the aforesaid order on the ground that as per exhibit CW1/1 the appellant was authorized to file the complaint on behalf of M/s. Jiya Lal Sumair Chand Jain in whose favour the cheques in question were issued by the first respondent which were returned uncashed by the bank with remarks "exceeds arrangments".

(3.) THE appellant submits that in view of Section 141 of the N. I. Act the court is empowered to take cognizance of a complaint preferred by a firm, or a company under Section 138 of the Negotiable Instruments Act even filed by a manager of the company. It is, thus, submitted that the order passed by the Learned Metropolitan Magistrate is not sustainable because from the body of the complaint it is clear that the complaint was filed by the appellant not in his personal capacity but on behalf of the M/s. Jiya Lal Sumair Chand jain. In this regard reference has been made to paragraph 1 of the complaint where it is stated, "that the complainant is working as Manager Accounts with M/s. Jiya Lal Sumair Chand Jain, 3551, Chawri Bazar, Delhi 110006 and actively engaged in its day-to-day business activities and more specifically the sale and recovery of amount of the said firm".