TMI Blog2009 (1) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... Advise Ex.CW2/1 Ex.CW2/2. The document Ex.CW1/1 relied upon by the complainant during the examination of the CW1 shows that M/s. Jiya Lal Sumair Chand Jain is the partnership firm and the cheques were issued in its favour and the partner of the firm has authorized the manager (account) of the firm to initiate legal proceedings against the accused with regard to the cheques in dispute. Even the legal notice Ex.CW1/4 was issued on behalf of the firm M/s. Jiya Lal Sumair chand Jain. All the documents proved by the complainant clearly suggest that the firm M/s. Jiya Lal Sumair Chand Jain payee of the cheque and the firm was having cause-of-action in its favour to initiate the proceedings against the accused for dishonor of the cheque Ex.CW1/2 Ex.CW1/3. The eligibility criterion prescribed by Section 142 of Negotiable Instrument Act is that the complaint under Section 138 must be by the payee or the holder in due course of said cheque. The complaint was required to be filed in the name of the firm, who is the payee of the cheque, but the present case has been filed by one Shri Suresh Sharma in his personal capacity just on the basis of document Ex.CW1/1. The things would have been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court is empowered to take cognizance of a complaint preferred by a firm, or a company under Section 138 of the Negotiable Instruments Act even filed by a manager of the company. It is, thus, submitted that the order passed by the Learned Metropolitan Magistrate is not sustainable because from the body of the complaint it is clear that the complaint was filed by the appellant not in his personal capacity but on behalf of the M/s. Jiya Lal Sumair Chand Jain. In this regard reference has been made to paragraph 1 of the complaint where it is stated, That the complainant is working as Manager Accounts with M/s. Jiya Lal Sumair Chand Jain, 3551, Chawri Bazar, Delhi 110006 and actively engaged in its day-to-day business activities and more specifically the sale and recovery of amount of the said firm . 4. The petitioner has relied upon the following judgments in support of his case, i.e.: i) 2002 CriLJ 266 titled as MMTC Ltd. and Anr. v. Medchi Chemicals and Pharma (P) Ltd. and Anr. ii) 1995 RLR 286 (SC) Case titled as Sudhir Engg. Co. v. Nitco Roadways iii) P. Shivaram v. D. Bhaskaran. (madras High Court) Crime 121992 (3) iv) 2 (1998) Bc 196 (madras High Court) case t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terion prescribed by Section 142 is that the complaint must be by the payee or the holder in due course. This criterion is satisfied as the complaint is in the name and on behalf of the appellant company. 8. As far as the aforesaid judgment is concerned, the same is not applicable in the facts of this case because it is not a case where the Magistrate has not taken a cognizance on the basis of the complaint filed by the applicant but it is after the evidence was recorded, the Court being not satisfied with the authority of the appellant to file such a complaint and the complaint not being in the name of M/s. Jiya Lal Sumair Chand Jain dismissed the same. 9. In the Sudhir Engg. Company v. Nitco Roadways, the Apex Court dealt with the provisions contained under Section 3, 65, 68 of Evidence Act and Order 13 Rule 4 CPC about the admissibility of the evidence in respect of the documents, which are admitted by the opposite parties during the process of the admission of the documents before the Joint Registrar and which are marked as exhibits. In this regard Justice R.C. Lahoti of this Court (as his Lordships then were) made the following observations: 8. I am firmly of the opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne all documents produced or offered in evidence and bring any apparent insufficiency of the Court fee or other stamps to the notice of the Judge for orders. He shall endorse all documents admitted in evidence and all documents rejected with the particulars required by law and sign or initial such endorsement. 11.2. A bare reading of this Practice Direction shows that it is not artistically drafted 'Proved' as used in para 6 is nothing else except used loosely for 'put in' 'produced' or 'tendered'. After all the question of proof is not answered by Court during the statement of witnesses simultaneously with production of documents nor does the Court Master decide upon proof of documents. Para 7 makes it clear that endorsement by the Court Master of exhibit number on a document is 'admission in evidence' and not proof of a document. 10. In the present case, firstly there is no mention of any authorization in the statement of CW3, the appellant nor any other evidence has been made produced by the appellant despite suggestions given to him by the respondents that the complaint firm has not authorized the appellant to institute present proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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