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2021 DIGILAW 504 (HP)

SWATI STOREWEL PRIVATE LIMITED v. ASHOK KUMAR

2021-08-03

ANOOP CHITKARA

body2021
JUDGMENT : Anoop Chitkara, J. 1. Challenging the dismissal of complaint of the holder of the cheque i.e. M/s Swati Storewel Pvt. Ltd. has come up before this Court by filing appeal under Section 378 of CrPC against the judgment dated 25.7.2009, passed by learned Judicial Magistrate 1st Class, Kasauli, District Solan, H.P. 2. Cheque, Ext. CW1/B, issued for a sum of Rs. 11.50 lacs dated 4.6.2003 in favour of Swati Storewel Pvt. Ltd did not honour for 'insufficient funds." This cheque was issued with the stamp "For Kisan Sewa Kendra" reflecting that the accountholder was Kisan Sewa Kendra and signed by one Ashok Kumar, accused/respondent, herein. 3. After dishonour of the cheque, the complainant got issued a legal notice, Ext. CW1/E, dated 12.7.2003 under Section 138 of the Negotiable Instruments Act (in short 'NI Act'). The accused did not respond to the same. 4. After tendering non-payment of cheque amount despite receipt of legal notice, the complainant filed a criminal complaint under Section 138 of NI Act in the Court of Additional Chief Judicial Magistrate Kasauli at Solan. 5. The Court took cognizance of the matter and issued summons to the accused. The complaint was filed through one Mukesh Thapliyal, who was representative of the Company and claimed to have been authorized by the Board of Directors to file such complaint against Ashok Kumar. 6. The complainant testified as CW-1 and did not examine any other witness especially from anybody from the bank. 7. In statement under Section 313 of Cr.PC, the accused stated that cheque was given to one Yashpal, who had opened the firm. 8. The accused examined one Sushil Kumar as DW1 and tendered in evidence receipt Ext. DW1/A. DW1, Sushil Kumar, was working as Accountant with the complainant firm. 9. After hearing the parties, learned trial court dismissed the complaint. 10. Challenging the dismissal of complaint, the complainant came up before this Court by filing the aforesaid criminal appeal. 11. A perusal of the cheque Ext. CW1/B reads that it was stamped "For Kisan Sewa Kendra" and was signed by Ashok Kumar. In the complaint one resolution of the company has been annexed, which is Ext. CW1/A. As per this resolution, the company had authorized Mr. Mukesh Thapliyal to file a complaint against "M/s Subhash Enterprises. 11. A perusal of the cheque Ext. CW1/B reads that it was stamped "For Kisan Sewa Kendra" and was signed by Ashok Kumar. In the complaint one resolution of the company has been annexed, which is Ext. CW1/A. As per this resolution, the company had authorized Mr. Mukesh Thapliyal to file a complaint against "M/s Subhash Enterprises. A perusal of the entire complaint does not place on record or tender in evidence any resolution by the company authorizing Mr. Manoj to file a complaint against Ashok Kumar, proprietor of Kisan Sewa Kendra. Thus some other resolution authorizing to file complaint against one Subhash cannot be considered as a resolution to file the present complaint. 12. Given above, Mr. Mukesh Thapliyal in whose name the Company launched prosecution had no locus to file such complaint on behalf of the company and as such the complaint deserves dismissal. A perusal of the trial court judgment also reveals that trial court had applied its mind and also discussed all legal aspects, hence this Court does not find any illegality or infirmity with the present appeal. Consequently, the appeal is dismissed, so also pending miscellaneous applications, if any.