Ms/. Hazarimal Ram Prasad Vyas, vs R.Laxman Babu And Another,
2022 Latest Caselaw 4984 Tel

            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.

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

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

THE HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL NO. 647 OF 2010

Dt.10.10.2022

tk