THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 647 OF 2010
JUDGMENT:
This Criminal Appeal is filed by the Appellant/Complainant aggrieved by the acquittal recorded by the Principal Judicial Magistrate of First Class, Mancherial, in C.C.No.4415 of 2005, dated 25.01.2010, acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
2. The case of the complainant is that he has been supplying cement to the respondent/accused on credit basis and the respondent/accused fell due to the complainant. On demand of complainant, the accused issued a cheque for Rs.49,005/- and the said cheque was returned for the reason of insufficient funds. Having issued a notice since the accused failed to make good the amount covered by the cheque, a complaint was filed.
3. During the course of trial the Proprietor of the firm namely M/s.Hazarimal Ram Prasad Vyas himself examined as PW1 and Exs.P1-cheque, Ex.P2-bank return memo, Ex.P3-Copy of legal notice and Ex.P4-Acknowledgment of service of notice being served on the accused, were marked.
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4. The learned Magistrate acquitted the accused on the ground that PW1 failed to show there was a firm in the name of M/s.Hazarimal Ram Prasad Vyas in which name, the cheque was issued and that PW1 was the Proprietor of the said firm.
5. As seen from the evidence, except filing the cheque, cheque return memo, notice and the acknowledgment of service of notice, no other documents are filed.
6. Learned counsel for the appellant submits that since the signature on the cheque is not disputed a presumption under Section 139 of the Negotiable Instruments Act is attracted and for the said reason the acquittal recorded by the learned Magistrate is improper and liable to be reversed.
7. The cheque was issued in the name of M/s.Hazarimal Ram Prasad Vyas which is a Proprietary firm. Under Section 142 of the Negotiable Instruments Act, a company can prosecute, since it is a legal entity. When a company or a Proprietary concern as in the present case is prosecuting the accused for the offence under Section 138 of the Negotiable Instruments Act, it is for the complainant to prove that such Proprietary concern is in existence. Unless PW1 who stated that he was the Proprietor 3 when failed to file documents to substantiate that a firm in the name of M/s.Hazarimal Ram Prasad Vyas is in existence and PW1 is the Proprietor of the said firm, it cannot prosecute the accused.
8. In the absence of both, the Magistrate has no other option but to dismiss the complaint, which was rightly done. There are no grounds to interfere with the order of the acquittal.
9. Accordingly, the appeal is dismissed.
Miscellaneous applications pending, if any, in this criminal petition, shall stand closed.
__________________ K.SURENDER, J 10.10.2022 tk 4 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL NO. 647 OF 2010 Dt.10.10.2022 tk