HIMALAYAN PLASTIC LTD Vs. JAS RAM

JUDGEMENT

(1.) By way of this appeal, the appellant has challenged the judgment passed by the Court of learned Judicial Magistrate 1st Class, Solan, District Solan, Himachal Pradesh in Complaint No. 250/3/04 of 2002, dtd. 31/8/2007, vide which respondent-accused stand acquitted for commission of offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881.

(2.) Brief facts necessary for adjudication of the appeal are that complainant/appellant is an incorporate, constituted and registered Company with the Registrar of Companies at Jallandhar vide Registration No. 0608245 dtd. 5/4/1988. Earlier the Complainant-Company was named known as 'Himalyan Plastic Private Limited' and later on it was converted into a 'Limited Company' under Ss. 34 and 44 of the Companies Act, 1956 vide order of the Registrar of Companies dtd. 5/1/2001. As such, now it is known as 'Himalyan Plastic Limited'. All the liabilities, rights, assets etc. of M/s Himalyan Plastic Private Limited have been taken over by M/s Himalyan Plastic Limited. The Complainant-Company has its registered office and works at Chambaghat, Tehsil, and District Solan H.P. Sh. Madan Sharma is the Managing Director of the Complainant-Company and being Managing Director of the Company, he has executed a General Power of Attorney in favour of Sh. Sita Ram Verma, S/o Sh. Sant Ram, R/o Tehsil and District Solan HP and gave him the powers to act on behalf of the Company. Sh. Sita Ram Verma is competent and entitled to sign, verify and file the complaint on behalf of the Complainant-Company and to depose on oath by appearing in Court as also to engage service of counsel and to do all other lawful acts, deeds and things which may be necessary for the said purpose. The Complainant-Company deals in the business of manufacturing and sale of HDPE Pipes, fittings, sprinkler, drip irrigation systems, PIR( Silicon coated) HDPE Telecom. Duct. The accused was earlier purchasing the above material on credit basis form the Complainant-Company as per the business practice. In order to discharge the part of the liability and for consideration, the accused issued cheque duly signed by him in favour of Complainant- Company bearing Cheque No. 0098241 on 29/5/2002 for Rs.14,94,148.00 drawn at the Gurgaon Gramin Bank, Nandrampur Bass Branch of his account No. 3150 with the assurance that the same would be honoured on its presentation under its bank in all circumstances. Accordingly, complainant deposited the said cheque in the State Bank of India, The Mall Solan for encashment. The said banker of the Complainant-Company forwarded the said cheque to the drawee bank for presentation/realization, but to the utter surprise of the Complainant-Company, the said cheque was returned as unpaid by the drawee bank vide its cheque returning memo dtd. 28/8/2002, indicating the reason "insufficient balance" and this information was given to the complainant company by the State Bank of India, The Mall Solan vide letter dtd. 7/9/2002. The said Cheque was dishonoured by the drawee bank due to insufficiency of funds to the credit of accused. After the receipt of the said cheque as unpaid, complainant company issued a registered AD notice dtd. 14/9/2002 by sending the same on 16/9/2002 at two correct addresses of the accused requiring him to make the payment of the said dishonoured cheque to the complainant company within 15 days from the receipt of the notice. Notice was also sent separately under postal certification. The notices were duly received by the accused on 23/9/2002, but in spite of having received the notices, the accused failed to make the payment of the dishonoured cheque to the Complainant-Company. Period mentioned in the notice expired on 8/10/2002. Since the accused had failed to make the payment of the dishonoured cheque within the 15 days from 23/9/2002 and period mentioned in the notice expired so the accused is guilty of offence punishable under Sec. 138 of the Act. It has also been stated in the complaint by the Complainant-Company that the cause of action for filling the complaint arose to the Complainant-Company on 9/10/2002 and further when the accused committed offence punishable under Sec. 138 of the Act and further on 14/9/2002 when notice was issued on 16/9/2002, which was received by the accused on 23/9/2002. The cause of the action also arose when the accused failed to make payment within 15 days from 23/9/2002. It has, therefore, been prayed that the accused may be summoned, dealt with and punished as per provisions of Sec. 138 of the Act.

(3.) The complaint was dismissed by the learned trial Court after due trial.