KUBSIS ENTERPRISES Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an application for leave to Appeal under section 378 (4) of Cr. P. C. preferred by the Applicant/Complainant.

(2.) THE accused had issued a cheque of Rs.1,16,000/- towards payment of purchase of goods from the complainant proprietary concern and the said cheque was dishonoured with endorsement 'referred to drawer'. The complainant, thereafter served notice of demand and complied all the requirement for prosecution under Section 138 of the Negotiable Instruments Act against the accused. After filing of the Complaint, the prosecution was launched against the accused which resulted in acquittal of the accused, on the point that the complaint was filed by the power of attorney holder of the owner of the proprietary concerned. Evidence was also tendered by the power of attorney holders.

(3.) IT is settled legal position that the evidence of the complainant cannot be replaced by or through the power of attorney holder. It is necessary for the owner of the proprietary concern to step in the box and depose the facts. Unless, the evidence of original Complainant or the owner of the proprietary concern is tendered on the point of enforceable liability, the procedural compliance under section 138 of NI Act, these facts cannot be said to be proved. These facts cannot be proved through the suggestion to the power of attorney holders in the cross examination and its denial in the cross examination. The learned Trial Judge has rightly dismissed the complaint on this settled position of law. No need to disturb the findings. Hence, leave to appeal stands rejected.