KAMLA RUSIYA Vs. STATE OF MP

JUDGEMENT

(1.) :- Heard on admission.

(2.) This is an application under Section 378(4) of the Code of Criminal Procedure for grant of leave to appeal against the order of acquittal in respect of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The corresponding judgment was passed on 24/8/2006 by Shri A.K.Pandey, JMFC Satna in Criminal Case No.1101/2005. In that case, cognizance of the offence was taken upon a complaint made by the applicant. It contained the following averments - The respondent is the Proprietor of a Firm that carries business in the name of M/s Vaibhav Enterprises. On behalf of the Firm, the respondent borrowed an amount of Rs. 1 lakh from the applicant and for repayment thereof issued a post dated cheque for an amount of Rs. 1 lakh. However, the cheque was dishonoured by the Bank. He sent a notice of demand by registered post, but it was returned with the remark that the addressee had refused to accept it. Thereafter, the respondent failed to pay the amount covered by the cheque within the stipulated period.

(3.) Asserting that he was not the Proprietor of the Firm, the respondent took the defence that the cheque in question was dishonoured by the Bank for want of authority despite the fact that sufficient amount was available in the corresponding account. According to him, the power of attorney executed in his favour by Smt. Nirmala Devi, the Proprietor, authorizing him to withdraw the amount was cancelled much before the dishonour of cheque. To substantiate the plea S.G.Tripathi (DW1), the then Accountant and Ramautar Pathak (DW2), Munim of the Firm were examined."