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Bhupesh Rathod Versus Dayashankar Prasad Chaurasia

2015 (12) TMI 637 - BOMBAY HIGH COURT

Dishonoring of cheque - authority to file the complaint - Commission of an offence punishable under Section 138 of the Negotiable Instruments Act - whether the order of acquittal be set aside and respondent no.1 be convicted? - Held that:- All the cheques were favouring 'M/s. Bell Marshall Tele System Limited.' The complainant's case is that M/s. Bell Marshall Tele System Limited is a Company incorporated under the Companies Act. Company, being a juristic person, has a separate and distinct iden .....

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ompany M/s. Bell Marshall Tele System Limited. When the Company was aware of this position, that being payee, the Company itself was required to file the complaint, why the complaint was not filed in the name of the Company, is not clear.

It is difficult to hold that this is simply an oversight or a mistake, and the possibility that the complainant wanted to keep this aspect of the matter rather vague, cannot be ruled out. This is particularly so, because, it does not appear to be the .....

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ust be held that, the complaint had not been filed by the payee or the holder in due course of the cheques in question. Section 142 of the N.I. Act leaves no manner of doubt that a complaint in respect of an offence punishable under Section 138 thereof, would be maintainable only if it is filed by a payee or the holder in due course. In this view of the matter, do not wish to interfere with the finding of acquittal recorded by the learned Magistrate. - CRIMINAL APPEAL NO. 805 OF 2009 - Dated:- 3 .....

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ggrieved thereby, the appellant has, after obtaining special leave of this court, filed the present appeal praying that the order of acquittal be set aside and respondent no.1 be convicted. 2. I have heard Mrs. Kavita Pawar, the learned counsel for the appellant. I have heard Mr. Amar Bhatt, the learned counsel for respondent no.1. 3. For the sake of convenience and clarity, the appellant shall hereinafter be referred to as 'the complainant' and respondent no.1 as 'the accused.' .....

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leading to acquittal cannot be accepted. Though there is some substance in this contention, in my opinion, the prosecution of the accused itself was bad. It is because, it is difficult to hold that the complaint in the instance case had been filed by the payee or the holder in due course. In view of Clause (a) of Section 142 of the N.I. Act, the cognizance of an offence punishable under Section 138 of the N.I. Act can be taken only upon a complaint made by the payee, or the holder in due course .....

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me, and though he has given his description as the 'Managing Director of M/s. Bell Marshall Tele System Limited', it is difficult to spell out from the complaint, that the same had been filed by the said Company. 7. In the introductory part of the complaint also, the complainant has described himself as the complainant, and has not described the Company as the complainant. In paragraph 1 of the complaint, the complainant has kept vague, as to in whose favour the cheques were issued by th .....

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0,000/- '' '' 5. 660690 10.5.2006 20,000/- '' '' 6. 660691 10.4.2006 20,000/- '' '' 7. 660692 10.4.2006 20,000/- '' '' 8. 660693 10.3.2006 20,000/- '' '' Thus, there is no mention that the cheques were issued favouring the Company. This aspect, apparently, has been kept vague by the complainant. In the body of the complaint also, it is not mentioned that the complaint is being filed by the Company, and that, the defa .....

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