Judgment ( 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 of 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 (D. W. 1), the then Accountant and ramautar Pathak (D. W. 2), Munim of the Firm were examined. ( 4. ) A bare perusal of the judgment would reveal that the finding of not guilty was recorded in view of the following facts :- (i) The demand notice was not issued within the prescribed period of fifteen days of receipt of information from the bank regarding dishonour of cheque. (ii) The post-dated cheque was given by way of guarantee in respect of agreement dated 1-4-1999 (Exh. P-1 ). ( 5. (ii) The post-dated cheque was given by way of guarantee in respect of agreement dated 1-4-1999 (Exh. P-1 ). ( 5. ) THERE is yet another aspect of the matter justifying the acquittal that though not dealt with by learned Trial Magistrate also deserves consideration as under:-Although the cheque was issued on behalf of M/s Vaibhav enterprises yet, it was not arraigned as an accused. It is true that a Proprietary concern is neither a Company incorporated under the Companies Act, 1956 nor a Firm within the meaning of Section 4 of the Partnership Act, 1932, but in absence of averments as to whether the Firm was a registered Partnership Firm, its Proprietor namely Nirmala Devi ought to have been prosecuted for the dishonour of cheque. However, as explained by the Apex Court in Anil Hada Vs. Indian Acrylic Ltd. , AIR 2000 SC 145 , the complaint could not be dismissed simply because the Firm or its Proprietor was not impleaded as an accused. But the only fact that the respondent had issued the cheque, by itself, was not sufficient to attract penal liability for the offence under Section 138 as he was able to establish that his authority as the drawer had ceased to continue till the date it was presented for encashment. In other words, the applicant had failed to prove that the respondent had played some role at the time when the cheque was dishonoured (See : DCM Financial Services Ltd. Vs. XN. Sareen, AIR 2008 SC 2255 ). ( 6. ) MOREOVER, Section 138 of the Act covers only those cases wherein the cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank. ( 7. ) IT is well settled that an order of acquittal should not disturbed unless the conclusions drawn on the evidence on record, are found to be grossly unreasonable, perverse and palpably unsustainable. ( 8. ( 7. ) IT is well settled that an order of acquittal should not disturbed unless the conclusions drawn on the evidence on record, are found to be grossly unreasonable, perverse and palpably unsustainable. ( 8. ) IN this view of the matter, no interference is called for. The application, therefore, stands dismissed in limine.