JUDGMENT : 1. This appeal is filed at the instance of the original complainant under Section 378 of Cr.P.C., 1973, feeling aggrieved and dissatisfied with the impugned judgment and order dated 19.12.2011 passed by learned Additional Chief Judicial Magistrate, Jamnagar in Criminal Case No.569 of 2009. By the said judgment and order, the learned Magistrate has recorded the order of acquittal of respondent No.2-original accused by giving benefit of doubt for the offence punishable under Section 138 of the N.I. Act, 1881. 2. The gist of the complaint according to the complainant is that appellant is a public limited company registered under the provisions of Companies Act and is engaged in the business of automobiles leasing/higher purchase. It would be relevant to mention that the complainant is “Ashok Leyland Finance Ltd.” (for short “erstwhile company”) and the complaint is filed by Satish Chandulal Dube, who claims to be the Area Officer of the erstwhile company and as part of his service and the post, which he holds being authorized by the complainant, has filed the present complaint. It is contended in the complaint that the accused No.1 had obtained loan for purchase of Tata Indica Car bearing registration No.GJ-10-W-9310, for which, a separate loan agreement was entered between the parties. As per the terms and conditions of the said loan agreement, the accused had to make payment in installments, for which, the accused had handed over post dated cheques having account with the Navanagar Cooperative Bank Limited, Digvijay Plot Branch, Jamnagar. It is the case of the complainant that out of the aforesaid cheques, three cheques i.e. cheque No.582545 dated 19.08.2008, Cheque No.582547 dated 19.10.2008 and cheque No.582548 dated 19.11.2008, each of an amount of Rs.6,450/- were presented by the complainant company for realization of the aforesaid outstanding loan amount. All these cheques were dishonoured on the ground of “insufficient funds”, which were returned back to the complainant with copy of return memo dated 11.12.2008 issued by the said bank. On dishonour of the cheques, the complainant company had addressed legal notice dated 16.12.2008 by registered post A.D. at the known address of the respondent-accused. The said notice was returned back with an endorsement of accused having left the said place. Such acknowledgment was received back on 17.12.2008. On dishonour of the cheques, the complainant company had addressed legal notice dated 16.12.2008 by registered post A.D. at the known address of the respondent-accused. The said notice was returned back with an endorsement of accused having left the said place. Such acknowledgment was received back on 17.12.2008. In such circumstances, the complainant was constrained to approach the court of Learned Additional Chief Judicial Magistrate, Jamnagar by presenting complaint on 15.01.2009, which was registered as Criminal Case No.569 of 2009. 3. Upon verification of the complainant, the summons came to be issued upon respondent-accused and the summons were duly served. The accused had appeared before the learned Magistrate and his plea was recorded vide Exh.24. The accused had denied the case of the complainant and the learned Magistrate had proceeded with the trial. 4. The complainant had examined himself vide Exh.35 and one witness Sanjeev Indulal Mehta, who has been examined vide Exh.65. Apart from the oral evidence, the complainant has laid documentary evidence, which include the disputed cheques (Exhs.41 to 43), the return memo (Exhs.44 to 46), the legal notice (Exh.47), the postal cover of the legal notice with endorsement of left (Exh.48), the copy of general power of attorney authorizing Satish Chandulal Dube for filing of the complaint (Exh.49), the authority letter issued by the Bank (Exh.66), the statement of the accounts of the accused (Exh.67), the register of cheque return (Exh.68) and the certificate issued as per the Bankers Book of Evidence Act (Exhs.69 to 70), have been placed on record. 5. On closing pursis submitted by the complainant, further statement of the accused was recorded under Section 313 of Cr.P.C. The accused has raised specific defence that the disputed cheques were given to the complainant as security. The questions, which were put to the accused, were generally denied. It was further submitted by the accused that the car, which was purchased on such loan transaction, was taken away by the finance company along with the original documents and the amount has already been realized. It was further submitted by the accused that installment of an amount of Rs.6,450/-, such 26 installments have been paid. He therefore, submitted that no legal debt existed on the date when the cheques were presented and the company has lodged false claim. It was further submitted by the accused that installment of an amount of Rs.6,450/-, such 26 installments have been paid. He therefore, submitted that no legal debt existed on the date when the cheques were presented and the company has lodged false claim. He had refused to enter in the witness box or to examine any other witnesses in support of his case. The trial court had proceeded with the final adjudication of the matter. Learned advocates appearing for the respective parties were heard. 6. Learned Magistrate upon appreciation of the evidence, which has come on record as well as considering the submissions made by learned advocates appearing for the respective parties, noticed the present complaint is filed without any authority and had proceeded to record the order of acquittal by judgment and order dated 19.12.2011. Hence, this appeal at the instance of the complainant under Section 378 of Cr.P.C. 7. The complainant had preferred leave to appeal being Criminal Misc. Application No.2341 of 2012, which was granted by this Court vide order dated 01.03.2012. The appeal came to be admitted by this Court vide order dated 28.03.2012 and bailable warrant was issued upon respondent No.2-original accused. The request was made to call for record and proceedings, which has been received by this Court. When the matter was notified for final hearing, the counsel for the appellant realized that rule issued by this court qua respondent No.2-original accused, has not been received back till date. This matter was notified on board for final hearing. On 11.10.2022, the court recorded the order about absence of learned advocate for the appellant and noticing that the matter is of year- 2012, had adjourned the matter recording as a last chance. Thereafter, this matter was notified on 28.04.2023 and the court had proceeded with final hearing of the matter, even in absence of respondent No.2. The learned advocate for the appellant was heard. Thereafter, the matter was kept for further hearing on 29.04.2023. 8. Learned advocate Mr. Dhruvik K. Patel had appeared on behalf of the appellant and had made various submissions. At the outset, he has invited attention of this Court to the reasons recorded by the trial court while not entertaining the complaint. He has submitted that the trial court has not properly appreciated the facts, evidence and circumstances of the case in its true perspective. At the outset, he has invited attention of this Court to the reasons recorded by the trial court while not entertaining the complaint. He has submitted that the trial court has not properly appreciated the facts, evidence and circumstances of the case in its true perspective. He has submitted that the trial court failed to appreciate the fact that no arguments were advanced by the accused raising issue about the maintainability of the complaint at the instance of the authorized officer of the erstwhile company. He has further submitted that the trial court on its own noticing the authority letter produced along with the vakalatnama assumed that the complainant namely Satish Chandulal Dube was the employee of the IndusInd Bank Limited ( for short “new entity”), whereas no authority has given by erstwhile company. He has further submitted that in absence of any defence being raised by the accused only at the final submissions stage, the aforesaid aspect was examined by the trial court, which had led into miscarriage of justice. He has further submitted that no opportunity was given to the complainant to offer explanation as regards the filing of the complaint by the authorized officer is concerned. 8.1 He has further invited attention of this Court to the letter dated 15.06.2004 placed along with Vakalatnama on the record of the present appeal, wherein it transpires that the scheme of arrangement came to be sanctioned by the Bombay and Madras High Court, whereby post facto approval has been granted by R.B.I. with regard to the merger of erstwhile company with new entity subject to the conditions enumerated in the said letter. The said letter is issued by the Reserve Bank of India addressed to the new entity whereby the post facto approval has been granted by the R.B.I. subject to aforesaid conditions. He has taken this Court through the relevant provisions of the N.I. Act. 8.2 He has further invited my attention to Section 138 of the N.I. Act and has submitted that all the essential conditions recognized under the law, has been fulfilled for lodging of the complaint under Section 138 of the N.I. Act. He has taken this Court through the relevant provisions of the N.I. Act. 8.2 He has further invited my attention to Section 138 of the N.I. Act and has submitted that all the essential conditions recognized under the law, has been fulfilled for lodging of the complaint under Section 138 of the N.I. Act. He has further submitted that once the drawer of the cheque fails to make the payment of the amount of the money to the payee or as the case may be to the holder in due course of the cheque within 15 days of the receipt of the legal notice as provided under Section 138 (b) of the N.I. Act, it would be the payee or in other case, the holder in due course of the cheque, who would be competent to file complaint for dishonour of cheque. At this stage, he has referred to Section 7 of the Act, wherein the term drawer and payee appearing in Section 138 has been defined. He has also referred to Section 9 of the Act, which defines the term holder in due course. By referring to the aforesaid provisions, he has submitted that name of the erstwhile company appears in the disputed cheque as payee. Though, the said company has lost its existence in the eye of law, however, its rights to prosecute under the N.I. Act through the authorized officer, still continues. In such circumstances, though the original complainant-company had seized to exist but by virtue of the scheme of arrangement the rights being derived by new entity, the authority letter was issued by the said bank to prosecute on behalf of the payee i.e. erstwhile company. 8.3 He has further submitted that the authority letter issued by the subsequent bank, has been brought on record vide Exh.66, even in the power of attorney expressing the authority in the name of Satish Chandulal Dube, has been placed on record vide Exh.49. He therefore, has submitted that the present complaint was lodged on behalf of the payee-company under the authorization given by the merged company. In such circumstances, the trial court ought not to have dismissed the complaint by recording the finding that no authority was produced on record on behalf of the payee company. He therefore, has submitted that the present complaint was lodged on behalf of the payee-company under the authorization given by the merged company. In such circumstances, the trial court ought not to have dismissed the complaint by recording the finding that no authority was produced on record on behalf of the payee company. In support of his case, he has relied upon the decision of the Hon’ble Apex Court in the case of TRL Krosaki Refractories Limited vs. SMS Asia Private Limited and another reported in (2022) 7 SCC 612 and has submitted that when a company is the payee of cheque based on which a complaint is filed under Section 138 of the N.I. Act, the complainant necessarily should be the company, which would be represented by an employee who is the authorized officer. He therefore, submitted that once the specific assertion was made in the power of attorney expressing the authority in the name of Satish Chandulal Dube, who was also the ex-employee of the payee company, the learned Magistrate ought not to have dismissed the complaint on the question of authorization. Even otherwise, in absence of any issue being raised by the accused, the learned Magistrate even while noticing suo moto would have given opportunity to the complainant to satisfy the Court with regard to the existence of valid authorization to file the complaint. He therefore, urged this Court to consider the present appeal and remand back the matter to the trial court for fresh adjudication on merits. 9. Having heard learned advocate for the appellant-original complainant and learned APP appearing for the respondent-State, it transpires that rule has not been received back qua respondent No.2 , but considering the fact that appeal is of the year-2012, the matter has proceeded for final hearing. 10. The only question which falls for consideration of this Court, is whether the learned Magistrate has committed error in passing the impugned judgment and order of acquittal on the ground of absence of authorization to file complaint representing the company, which has merged with other company. 11. Before dealing with the submissions made by learned advocate for the appellant, it would be necessary to look into the legal provisions available in the statute, which are as under: Section 7 in The Negotiable Instruments Act, 1881 7 “Drawer”, “drawee”. 11. Before dealing with the submissions made by learned advocate for the appellant, it would be necessary to look into the legal provisions available in the statute, which are as under: Section 7 in The Negotiable Instruments Act, 1881 7 “Drawer”, “drawee”. —The maker of a bill of exchange or cheque is called the “drawer”; the person thereby directed to pay is called the “drawee”. “drawee in case of need”. —When in the bill or in any indorsement thereon the name of any person is given in addition to the drawee to be resorted to in case of need such person is called a “drawee in case of need”. “acceptor”. —After the drawee of a bill has signed his assent upon the bill, or, if there are more parts thereof than one, upon one of such parts, and delivered the same, or given notice of such signing to the holder or to some person on his behalf, he is called the “acceptor”. “acceptor for honour”. — [When a bill of exchange has been noted or protested for non-acceptance or for better security], and any person accepts it supra protest for honour of the drawer or of any one of the indorsers, such person is called an “acceptor for honour”. “Payee”. —The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the “payee”. Section 8 in The Negotiable Instruments Act, 1881 8. “Holder”.—The “holder” of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. Where the note, bill or cheque is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction. Section 9 of Negotiable Instruments Act 1881: "Holder in Due Course" "Holder in due course" means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or endorsee thereof, if payable to order, before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title Section 53 in The Negotiable Instruments Act, 1881 53. Holder deriving title from holder in due course.—A holder of a negotiable instrument who derives title from a holder in due course has the rights thereon of that holder in due course. Section 138 in The Negotiable Instruments Act, 1881 Dishonour of cheque for insufficiency, etc., of funds in the account. —Where any 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19[a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless— (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque,20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Section 139 in The Negotiable Instruments Act, 1881 Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. Section 139 in The Negotiable Instruments Act, 1881 Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. Section 142 in The Negotiable Instruments Act, 1881 Cognizance of offences- [1] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) — (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.] (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.] [2] The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,- (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated ; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. 12. A cumulative perusal of the aforesaid provisions under the N.I. Act indicates that firstly, the complaint has to be filed in the name of the company i.e. “the payee” or “holder in due course”. The term payee as defined under Section 7 of the Act, means a person named in the instrument to whom or to whose order, the money is directed to be paid by the instrument i.e. the cheque. The term payee as defined under Section 7 of the Act, means a person named in the instrument to whom or to whose order, the money is directed to be paid by the instrument i.e. the cheque. The term holder appearing in Section 8 of the Act, which defines, the term holder in due course has been defined as “any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. It is further provided that the holder in due course also means any person who for consideration becomes the possessor of such cheque if payable to the payee before the amount mentioned becomes payable and without sufficient cause to believe that any defect existed in the title of the person from whom, it is derived having titled. Relevant would be take into consideration Section 53 of the Act, which gives right to the holder of a negotiable instrument to derive title from a holder in due course with the rights thereon available to the holder. 13. In my opinion, the meaningful reading of the aforesaid relevant provisions indicates that initially the erstwhile company was the actual payee in whose favour, the order of payment of money was directed by the drawer of the cheque. There cannot be the dispute to the legal position that once the merger of two companies takes place under the scheme of arrangement, which was pursuant to the orders passed by the competent Court, the erstwhile company cease to exist in the eye of law. 14. The term merger though not defined under the Companies Act as laid down in the authorization decisions of this Court as well as Hon’ble Supreme Court. The term merger is understood to be an unification of two or more entities into one by accumulations of the assets and the liabilities of both the organizations. At the same time, the merger means an arrangement whereby one company merged with their identity into another two entity, which may or may not be existing ultimately the rights and liabilities of the erstwhile company looses its identity and is derived under the new entity. 15. In light of the aforesaid framework of merger of the companies, if one examines, the provisions of the N.I. Act, the payee company having lost its identity being merged into the new entity. 15. In light of the aforesaid framework of merger of the companies, if one examines, the provisions of the N.I. Act, the payee company having lost its identity being merged into the new entity. All the rights and liabilities under the scheme of arrangement has been vested in the new entity. The reading of Section 53 of the N.I. Act, itself goes to indicate that the holder of the disputed cheque i.e. new entity had derived title from the holder in due course i.e. the erstwhile company had thereby derived rights thereon of that holder in due course. If one looks at the provisions relating to the offences by companies as provided under Section 141 of the N.I. Act is concerned, the company having authorized its officer having personal knowledge by expressly giving authority, which in the present form was in the form of authority letter Exh.66, power of attorney Exh.49, can be accepted of being authorized to file the complaint on behalf of the payee company. 16. Section 142 of the N.I. Act requires a complaint under Section 138 of the N.I. Act, would be made by the payee “or by the holder in due course.” It is thus evident that in a complaint relating to dishonor of cheque the payee alone can be the complainant. At this stage, it would be appropriate to refer to the relevant observations of Hon’ble Apex Court in the case of National Small Industries Corporation Ltd. vs. State (NCT of Delhi) reported in (2009) 1 SCC 407 , has observed as under: 14. The term “complainant” is not defined under the Code. Section 142 of the NI Act requires a complaint under Section 138 of that Act to be made by the payee (or by the holder in due course). It is thus evident that in a complaint relating to dishonour of a cheque (which has not been endorsed by the payee in favour of anyone), it is the payee alone who can be the complainant. The NI Act only provides that dishonour of a cheque would be an offence and the manner of taking cognizance of offences punishable under Section 138 of that Act. However, the procedure relating to initiation of proceedings, trial and disposal of such complaints, is governed by the Code. The NI Act only provides that dishonour of a cheque would be an offence and the manner of taking cognizance of offences punishable under Section 138 of that Act. However, the procedure relating to initiation of proceedings, trial and disposal of such complaints, is governed by the Code. Section 200 of the Code requires that the Magistrate, on taking cognizance of an offence on complaint, shall examine upon oath the complainant and the witnesses present and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses. The requirement of Section 142 of the NI Act that the payee should be the complainant, is met if the complaint is in the name of the payee. If the payee is a company, necessarily the complaint should be filed in the name of the company, if a company is the complainant. A company can be represented by an employee or even by a non-employee authorized and empowered to represent the company either by a resolution or by a power of attorney. 16. Section 142 only requires that the complaint should be in the name of the payee. Where the complainant is a company, who will represent the company and how the company will be represented in such proceedings, is not governed by the Code but by the relevant law relating to companies. Section 200 of the Code mandatorily requires an examination of the complainant; and where the complainant is an incorporeal body, evidently only an employee or representative can be examined on its behalf, As a result, the company becomes a de jure complainant and its employee or other representative, representing it in the criminal proceedings, becomes the de facto complainant. Thus in every complaint, where the complainant is an incorporeal body, there is a complainant – de jure, and a complainant de facto. Clause (a) of the proviso to Section 200 provides that where the complainant is a public servant, it will not be necessary to examine the complainant and his witnesses. Where the complainant is an incorporeal body represented by one of its employees, the employee who is a public servant is the de facto complainant and in signing and presenting the complaint, he acts in the discharge of his official duties. Where the complainant is an incorporeal body represented by one of its employees, the employee who is a public servant is the de facto complainant and in signing and presenting the complaint, he acts in the discharge of his official duties. Therefore, it follows that in such cases, the exemption under clause (a) of the first proviso to Section 200 of the Code will be available. 19. Resultantly, when in a complaint in regard to dishonour of a cheque issued in favor of a company or corporation, for the purpose of Section 142 of the NI Act, the company will be the complainant, and for purposes of Section 200 of the Code, its employee who represents the company or corporation, will be the de facto complainant. In such a complaint, the de jure complainant, namely, the company or corporation will remain the same but the de facto complainant (employee) representing such de jure complainant can change, from time to time. And if the de facto complainant is a public servant, the benefit of exemption under clause (a) of the proviso to Section 200 of the Code will be available, even though the complaint is made in the name of a company or corporation.” (emphasis supplied) 17. The aforesaid view of the Hon’ble Apex Court has been relied upon by constitutional bench of Hon’ble Apex Court in the case of TRL Krosaki Refractories Limited (supra). The complaint at the instance of authorizing officer of new entity would be maintainable on behalf of the holder in due course of the payee company. Since the erstwhile company which is payee company has cease to exist in eye of law. On approval of scheme of arrangement, the rights and liabilities stood transferred in name of new entity. Thus, the new entity becomes the holder in due course of the disputed cheque. 18. However, in the instance case, as rightly recorded by the Trial Court the document conferring authority viz. power of attorney (Exh.49) has been executed by IndusInd Bank. The complainant has failed to produce on record any document establishing the relations between two entities. For the first time in present appeal, it has emerged on record as reflected in authority letter placed along with Vakalatnama of learned advocate for the appellant that merger has taken place. In such circumstances, the very existence of the “erstwhile company” viz. The complainant has failed to produce on record any document establishing the relations between two entities. For the first time in present appeal, it has emerged on record as reflected in authority letter placed along with Vakalatnama of learned advocate for the appellant that merger has taken place. In such circumstances, the very existence of the “erstwhile company” viz. Ashok Leyland Finance Ltd. ceased to exist. However, the fact remains in absence of any document being produced about arrangement of scheme and the rights and liabilities derived by the new entity, the complainant has miserably failed to prove any nexus or connection by adducing any evidence, whatsoever worth the association of its name with the said erstwhile company. In absence of necessary arrangement and documents brought on record, no error is committed by trial court in dismissing the complaint. 19. Mr. Dhruvik Patel, learned advocate has urged this Court to grant opportunity to adduce such evidence and remand the matter back to the trial court. However, this lacuna on part of the appellant complainant cannot be cured by permitting the new entity “IndusInd Bank” to be joined or substituted with the aid of Section 319 read with Section 320 of the Code. 20. In view of the totality of facts and circumstances of the present case and on basis of material brought on record, this Court is of considered opinion that the present complaint is not filed by “holder in due course” nor any authority is placed of “payee” whose name appears as complainant in order to file complaint. Thus mandatory requirement of Section 138 of the N.I. Act is not fulfilled. 21. In view of the aforesaid observation as well as considering the fact that the amount involved with regard to disputed cheque is to the tune of Rs.19,350/-, present appeal is not entertained and stands dismissed. 22. Bailable warrant, if any, stands cancelled. Record and proceedings be sent back to the concerned court forthwith.