JUDGMENT : S.R. Brahmbhatt, J. Heard learned advocates for the parties. 2. The appellant, original complainant in Criminal Case No. 1165 of 2000 filed under the provisions of Section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as the Negotiable Instruments Act for the sake of brevity) has approached this Court under Section 378 of the Code of Criminal Procedure challenging the order of acquittal dated 26th September,2008 passed by the Learned Judicial Magistrate First Class, Vadodara in Criminal Case No.1165 of 2000 acquitting the respondents herein above of the charge of committing offense punishable under Section 138 of the Negotiable Instruments Act. 3. Facts in brief leading to filing of this appeal deserve to be set out as under; 4. The complainant has styled herself as proprietor of a firm called Perfection Engineering Company having its office at Vadodara, she appointed her husband Shri Mahesh R. Shah, her power of attorney holder. The appellant company is said to have been engaged in business of manufacturing and supplying of engineering machineries. The original accused No.1 and 2, respondent No.2 and 3 were partners of Dev Offset, a firm having its office at Surat and accused No.3 namely Ishwarbhai D. Patel, respondent No.4 herein above, is said to have been proprietor of Parth Designs, having its office at Surat. It was the case of the complainant before the Trial Court that the appellant received order from Dev Offset Firm for purchasing printing machine of 15x20 size, which was agreed to be sold for Rs. 3,10,000/-, accused No.1 and 2 paid Rs. 80,000/- towards the price of the machine to be supplied by the appellant company and executed an agreement for payment of the remaining amount of Rs. 2,30,000/- on Stamp Paper of Rs. 10/- on the same day. The accused No.3 is said to have issued post dated Cheque for Rs. 2,30,000/- in favour of the appellant company drawn on Varachcha Cooperative Bank Limited, Surat. The Cheque was dated 30th September, 1999. While issuing the post dated Cheque, the instruction came to be issued not to present the same immediately in the Bank. Hence the said Cheque was not presented in the Bank. 2,30,000/- in favour of the appellant company drawn on Varachcha Cooperative Bank Limited, Surat. The Cheque was dated 30th September, 1999. While issuing the post dated Cheque, the instruction came to be issued not to present the same immediately in the Bank. Hence the said Cheque was not presented in the Bank. The appellant presented the Cheque after receiving instruction to present the same from respondent No.4, the Cheque was not honoured by the drawee Bank and it was returned to the presenter with a memo containing endorsement that signature differ. It is contended by the appellant-complainant that respondent No.4 accused could not make arrangement for sufficient fund in the Bank account. As the Cheque was not honoured, the statutory notice came to be issued to respondent No.2 and 4, which they refused to accept. Hence after completion of the statutory period, criminal complaint came to be lodged before the Chief Judicial Magistrate, Vadodara, wherein it came to be registered as Criminal Complaint No.1165 of 2000. The Learned JMFC, Vadodara after recording the evidence and hearing the rival contentions of the parties, came to the conclusion that the offence was not made out so as to bring home conviction on the part of the respondents and hence acquitted them vide its order dated 26th September,2008 in Criminal Case No.1165 of 2000, which is impugned in this appeal under Section 378 of the Code of Criminal Procedure. 5. This Court (Coram: Hon'ble Mr. Justice D.H. Waghela, J.) on 3.7.2009 admitted the appeal and issued bailable warrant in sum of Rs. 5000/- for procuring the presence of respondent Nos. 2,3 and 4 and ordered to list the appeal on 6th August,2009 and called for R & P in the meantime. The matter was slated before this Court for final disposal. 6. Shri S.J. Gayakwad, learned advocate appearing for the appellant submitted that the Trial Court has patently erred in not appreciating the evidence on record. The Trial Court ought to have appreciated the evidence on record in its true perspective. The complainant has established her case in respect of legally enforcible liability of the respondents in making payment for the machine purchased. The complainant has also established the fact that the Cheque came to be issued towards the said liability arising out of transaction of purchasing the machine in question. The complainant has established her case in respect of legally enforcible liability of the respondents in making payment for the machine purchased. The complainant has also established the fact that the Cheque came to be issued towards the said liability arising out of transaction of purchasing the machine in question. The Court erroneously recorded its finding in respect of non-serving of notice as the Court ought to have opened the returned envelop when it was produced before it and ought to have seen the contents thereof to know the tenor of the notice which would have persuaded the court not to hold that the notices were not served. The Court has wrongfully not exhibited the notice and proceeded on the wrongful premise that the notice, therefore, had not been served so as to bring home guilt on the part of the accused. 7. Shri S.J. Gayakwad, learned advocate appearing for the appellant further submitted that the Court has to assume participatory role and in a given case take appropriate steps for serving the ends of justice. Relying upon decision of the Apex Court in case of Zahira Habibullah H. Sheikh & Anr. v. State of Gujarat & Ors. reported in (2004) 4 SCC 158 ., specially on Paragraph 43 and 44 of the said decision, submitted that in the instant case, the Court by not opening the envelope containing notice has, to say the least, abandoned his role as a participatory in the Trial and thus the order of acquittal based upon such misconceived premises deserves to be quashed and set aside. The Court, therefore, ought to have opened the sealed envelopes and recorded evidence thereof. This defect in the order of acquittal renders the order liable to be quashed and set aside and this Court may, therefore, if not allowed the appeal, at least remand the matter to the Trial Court for at least limited purpose of opening the sealed cover and exhibiting the documents. 8. Shri S.J. Gayakwad submitted that the respondent herein above have admitted that there was a transaction of purchase of machine in question and the Cheque came to be issued towards fulfillment of their liability arising out of that transaction. The Court, at times, needs to overlooked the ocular evidence and give preference to the documentary evidence available on record. 8. Shri S.J. Gayakwad submitted that the respondent herein above have admitted that there was a transaction of purchase of machine in question and the Cheque came to be issued towards fulfillment of their liability arising out of that transaction. The Court, at times, needs to overlooked the ocular evidence and give preference to the documentary evidence available on record. In the instant case, the court ought to have appreciated documentary evidence available on record and held that the transaction in question was proved and the Cheque in question was issued towards legally enforcible liability. The Trial Court has further erred in holding that the transaction was alleged to have been with accused No.1 and as the Cheque came to be issued by accused No.3, the Cheque could not be said to have been issued to fulfill the liability. The court ought to have appreciated that accused No.3 being owner of the firm from whose account, the Cheque was issued, happened to be one of the partner in accused No.1 firm. 9. Shri S.J. Gayakwad relying upon decision of the Gujarat High Court in the case of Dada Silk Mills & Ors. v. Indian Overseas Bank & Ors. reported in 1995 (vol. 82) Company Cases, Page 35. submitted that this Court has interpreted the scope and ambit of Section 138 and Section 142, the real motive of the act and Section 138 would go to show that the return of Cheque with any other endorsement like refer to drawee, account closed, go back to drawer, stop payment would be of no consequences to the drawer when he fails in making good the Cheque amount to the complainant after receiving the statutory notice as stipulated under Section 138 of the Negotiable Instruments Act. Shri Gayakwad submitted that the Gujarat High Court has relying upon decision of the Division Bench of the Bombay High Court in case of Rakesh Nemkumar Porwal v. Narayan Dhondu Joglekar reported in 1993 (volume 78) Company Cases, Page 822. held that the written memo would in fact not be of much consequence and there cannot be any insistence that the Cheque is essentially have to be bounced on account of insufficiency of fund only. 10. held that the written memo would in fact not be of much consequence and there cannot be any insistence that the Cheque is essentially have to be bounced on account of insufficiency of fund only. 10. Shri Gayakwad in respect of finding with regard to service of notice, relying upon decision of the Apex Court in case of Harcharan Singh v. Smt. Shivrani & Ors., reported in (1981) 2 SCC 535 . submitted that by as per the provisions of the General Clauses Act,1897, when the document, sought to be served, is by properly addressed, postage paid and send by by RPAD to the addressee then presumption of receipt is to be drawn and it is thereafter for addressee to rebut the same by leading contrary evidence to show that it had in fact not been received. In the instant case, the endorsement of the refusal on the envelope containing notice would, therefore, cannot be said to be non- service of notice so as to acquit the accused of the charge of committing offence punishable under Section 138 of the Negotiable Instruments Act. The Apex Court has also in case of C.C. Alavi Haji v. Palapetty Muhammed & Anr. reported in (2007) 6 SCC 555 ., held that the respondents original accused could not have disputed service of notice and resisted the claim of the appellant-complainant only on account of non-service of notice, as, had there been a genuineness case on their part and intention to pay then they would have come forward when the summons was issued by the Court and in response to the summons, they could have come and said that they are ready and willing to pay the Cheque amount. The apex court has in the aforesaid case observed that when the accused have chosen not to offer the Cheque amount despite the service of summons for Trial under Section 138 of the Negotiable Instruments Act, then he would not be permitted to take one and the only ground of non-service of notice for acquitting him of the charge of committing offence punishable under Section 138 of the Negotiable Instruments Act. 11. Shri Gayakwad, in view of the aforesaid facts and circumstances submitted that the offence is established the order of acquittal. 11. Shri Gayakwad, in view of the aforesaid facts and circumstances submitted that the offence is established the order of acquittal. Therefore is required to be quashed and set aside and if the Court is not inclined to remand the matter, then after recording acquittal may pass appropriate order punishing the accused respondents herein above. 12. Shri Tushar N. Vyas, learned advocate appearing for the respondents contended that the Court while examining the contention of the appellant under Section 378 of the Code of Criminal Procedure will have to be mindful of the fact that the fundamental principle of accused's innocence until proved guilty would not in any case be whittled down, rather the same would get strengthened with the order of acquittal. Shri Vyas, in support of his case relied upon the following authorities: 1. In case of Narayanamurthy v. State of Karnataka, reported in AIR 2008 SC 2377 . 2. In case of Vinod Tanna & Anr. v. Zaher Siddiqui & Ors. reported in (2002) 7 SCC 541 . 3. In case of Chandrappa & Ors. v. State of Karnataka reported in AIR 2007 Supreme Court (Supp) 111. 13. Shri Tushar N. Vyas, learned advocate appearing for the respondents submitted that the complainant has chosen not to examine herself and her power of attorney holder has chosen to lead evidence by way of filing affidavit and thus complainant was not available for being cross-examined before the Court. Shri Tushar N. Vyas submitted that the complainant has filed complaint characterizing the firm of the complainant to be a Limited Company, thus the complainant has right from the beginning not stated the correct facts before the Court. The complainant was never a company or a limited company, it was at the best a proprietary firm and hence the complainant herself should have filed the complaint. Shri Tushar N. Vyas has pointed out from the cross examination of the power of attorney holder of the complainant that he was specifically called upon to explain that how he is representing the complainant in the complaint. In this view of the matter, he submitted that the observation of the Court with regard to complaint and complainant's power deserves to be appreciated in its true perspective. In this view of the matter, he submitted that the observation of the Court with regard to complaint and complainant's power deserves to be appreciated in its true perspective. Shri Vyas further submitted that the notice cannot be said to have been served in view of the fact that the Court has not exhibited the notice as the notice has remained to be proved before the Court. Shri Vyas further submitted that the cross- examination of the witness namely power of attorney holder of the complainant reveals at many places that there was a serious doubt with regard to the entire transaction during the pendency of the complaint and attending machine thereafter and non-attending machine thereafter would go to show that the complainant failed in establishing its case beyond doubt so as to bring home guilt on the part of the accused. He submitted that the matter, therefore, required to be dismissed. 14. This Court has perused the documents and heard learned advocates for the parties. 15-16. Before adverting to the rival contentions of the learned advocates for the parties, it is expedient herein below to set out few indisputable aspects emerging from the perusal of the record and rival submissions of the party's advocate namely: The complainant is a proprietary firm, which is run in the name and style as Perfection Engineering Company, the complainant has described it in the complaint as under: PERFECTION ENGINEERING COMPANY (Proprietor) NILESHWARI M. SHAH Power of Attorney Holder Mahesh R. Shah, of 17/A, Sahajan and Industrial Estate, Mujmahuda, Vadodara. Thus, the complainant has not filed the complaint in her own name as a drawee of the cheque being Perfection Engineering Company. The very first line of the complaint read as under: The complainant is a Registered Company under the Companies Act, 1956 17. Thus the complainant has in her complaint also styled the complainant as Registered Company under the Companies Act, 1956. Unfortunately, the Trial Court has without noticing this glaring defect and discrepancy in the cause title and the averment of the complaint, straightway issued process without calling upon the complainant to explain the discrepancy. 18. Thus the complainant has in her complaint also styled the complainant as Registered Company under the Companies Act, 1956. Unfortunately, the Trial Court has without noticing this glaring defect and discrepancy in the cause title and the averment of the complaint, straightway issued process without calling upon the complainant to explain the discrepancy. 18. The cause title of the complaint further indicate that the complaint was filed by power of attorney holder Mahesh R. Shah, that in itself is not so clear as to explain whether the power of attorney is of the firm or of the proprietor herself in her personal capacity different than that as proprietor of the firm. Be that as it may. 19. The complaint contains averment of receiving of order of 15x20 sizes printing offset machine worth Rs. 3,10,000/- and its delivery to the accused- respondents on credit. The accused is said to have paid Rs. 1,80,000/- on 21st July,1999 and the remaining amount of Rs. 2,30,000/- was assured by way of agreement on stamp paper of Rs. 10/-. There appears to be some typographical error in that agreement. If you read, it would show that the amount paid was only Rs. 80,000/- and not 1,80,000/- as it is mentioned in Paragraph 1 of the complaint. 20. The complainant has further averred in Paragraph No. 2 that the accused issued Cheque dated 30.9.1999 for Rs. 2,30,000/- towards fulfillment of the said liability. The complaint in Paragraph No. 5 contains following: The said Cheque was sent for collection by the complainant and same was dishonoured for reasons Drawer Signature Differs'/not visible' with memo from their Bank. Thus it is mentioned in the memo that the Cheque was returned for making reference to the drawer as drawer's signature differs or not visible. The verification made before the Court, appended to the complaint on 28th March, 2008 also contains that the complainant issued notice through lawyer by RPAD calling upon the respondents to make good the payment. 21. The verification is made by the complainant herself. 22. The verification made before the Court, appended to the complaint on 28th March, 2008 also contains that the complainant issued notice through lawyer by RPAD calling upon the respondents to make good the payment. 21. The verification is made by the complainant herself. 22. In the entire memo of the complaint as well as the verification, nowhere the complainant has ever stated that her business is handled by her husband or that her husband is acting as her power of attorney holder or that her husband had witnessed the transaction, or it was concluded in presence of her husband or that her husband was completely aware about this transaction. The envelope of the notice received back by the complainant with an endorsement of refusal has not been opened by the Court nor have the notices been exhibited. 23. The pursis exchanged contained endorsement with regard to no objection in case of other documents, but for these documents, there was no 'no objection' given and hence they were not displayed by giving them appropriate exhibit numbers. 24. The testimony of the complainant did refer to the transaction for purchase of the Printing Offset Machine but cross-examination of the complainant's P.O. containing certain answers, which go to show that the transaction in question had not the same colour as it is sought to be given to it by the complainant. The documents namely the agreement pressed into service by the complainant bears scoring marks, and blank spaces at many places and, therefore, these facts were highlighted in the cross-examination by putting appropriate suggestion. 25. The complainant in his cross-examination admitted that he has not produced the power of attorney, under which the complaint came to be filed. The power of attorney is given to him with regard to making deposition in the complaint itself. 26. Against the aforesaid backdrop of indisputable aspect, now let us examine rival submissions of the learned advocates for the parties and the impugned order of acquittal. The contention, with regard to issuance of statutory notice and the mode of its services, presumption under certain circumstances etc needs no elaboration as law on this issues has been well settled and there cannot be any dispute with this ratio of the decisions on the issues. The Apex Court in Case of M/s. Shankar Finance & Investments v. State of Andhra Pradesh & Ors. The Apex Court in Case of M/s. Shankar Finance & Investments v. State of Andhra Pradesh & Ors. reported in 2009 (1) GLH 297 . elaborately discussed as to how the firm, the company and the partnership firm have to mention themselves in the cause title and held that in a case of proprietary firm, it is the proprietor who has to file complaint as he becomes the drawee or in whose favour, the Cheque is issued. In the instant case, the complainant has unfortunately not made correct statement and averment in the complaint. The Court hasten to add here that the notices were issued and the complaint was filed by payee herself but she has chosen not to examine herself and instead of her, the power of attorney holder is examined, who never clarified as to whether he had any personal knowledge of the entire transaction. The apex court has held in case of National Small Industries Corporation v. State (NTC Delhi) reported in 2009 Criminal L.J. 1299. that under Section 138 only payee has right to file and maintain the complaint. 27. The Power of Attorney's scope of acting on behalf of his principal in litigations have been discussed and dealt with by many courts in many cases. The apex court has in case of Janki Vasudev Bhojvani v. Industrial Bank Ltd reported in AIR 2005 Supreme Court 439. held that Power of Attorney Holder cannot depose on behalf of the principal. 28. In another case of M/s. Shankar Finance and Investments v. State of A.P. Reported in AIR 2009 Supreme Court 422. referring to the earlier decision in case of Janki Bhojvani (supra) the apex court while holding that Power of Attorney can file and verify the complaint on behalf of his principal and original payee under section 138 of the N.I.Act but cannot depose on his behalf unless and until he has personal knowledge what he is testifying. 29. This Court has in case of Ajay Kirtikant Ghelani v. Madhureshnagar Co- Oprative Housing Society reported in AIR 2008 Gujarat 44. relying upon the decision of Janki Bhojvani (supra) held that Power of Attorney cannot depose on behalf of his principal. 30. 29. This Court has in case of Ajay Kirtikant Ghelani v. Madhureshnagar Co- Oprative Housing Society reported in AIR 2008 Gujarat 44. relying upon the decision of Janki Bhojvani (supra) held that Power of Attorney cannot depose on behalf of his principal. 30. In the instant case as its noted herein above the Complaint is signed by the lady proprietor, statutory notices were issued by her and her Power of Attorney examined himself on behalf of her principal while categorically deposing that he was given power only for prosecuting this complaint. The Power of Attorney has not deposed anywhere that he did have any personal knowledge of the entire transaction in question, nor did he depose that he was holding power for handling business, nor did he depose that he was in fact handling business on behalf of his wife the principal who gave him power of attorney for prosecuting the complaint. In view of this factual aspect coming on record the order of acquittal needs to be sustained. 31. It is established principle of law that if the order of acquittal is capable of being maintained on any one of the valid available from the record and facts of the case than irrespective of acquittal order being erroneous on other ground, the acquittal need not be interfered with in exercise of appellate power under Section 378 of the Criminal Procedure Code In view of this the other grounds urged on behalf of the appellant would not deter the court in upholding the order of acquittal. 32. In the result, the Court is of the considered view that the order of acquittal impugned in this appeal needs no interference and hence the acquittal appeal fails is hereby rejected. Appeal dismissed