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TMI Blog2025 (5) TMI 1618X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter complainant deposited the said cheque to his banker but it was dishonoured on the ground of "insufficient fund" vide return memo dated 18.01.2013. Thereafter on 4.2.2013 the complainant sent a demand notice through there learned advocate to the accused /respondent no. 2 requesting him to pay the cheque amount but the said demand notice returned with postal endorsement "not claimed" on 14.02.2013. Since thereafter the accused neglected in making payment of the cheque amount and as such the aforesaid complaint case was initiated under section 138 of NI act. 3. The complaint case was filed by one Sandip Chatterjee, the then branch manager of complainant's company and on 04.06.2014, one affidavit-in-chief was filed by said Sandip Chatterjee who initially filed the case on behalf of dejure the complainant, however during trial it had been detected that there were two affidavit in chief filed on behalf of the complainant/company and both of them were signed by said Sandip Chatterjee. The first one is dated 09.04.2013 and the second one was notarized on 04.06.2014. During pendency of the case one Jayanta Halder was substituted on the application of the complainant. Though Sandip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He further submits that unfortunately the sole premise on which the learned Magistrate refused to address the meritorious issues is alleged failure of the complainant to examine the first authorized representative, which is absolutely illegal. 6. In this context he further argued that section 311 of the Code grants exclusive and unfettered power and judicial discretion to the learned magistrate for conducting the trial in the manner he decides, necessary for reaching to a just decision. Accordingly even if the learned court was of opinion that the earlier authorized representative of the complainant company is a vital witness for reaching to a just decision of the case, the learned magistrate should have ensured attendance and examination of the said person irrespective of failure on the part of the prosecution to adduce that particular person as a witness in the case. But by no means an order of acquittal can be recorded on such technical scores. 7. Mr. Lahiri further argued that the fallacy of the impugned judgment needs to be further appreciated on the settled proposition of law as mandated under section 33 of the Indian Evidence Act which deals with relevancy of certain evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that the affidavit sworn by Sandip Chatterjee under section 145 of N.I. Act, on the basis of which the exhibits were marked, said Sandip Chatterjee did not make himself available for cross examination 10. Mrs. Biswas in this context argued that the presumption under section 139 of the Act is that the cheque was issued for discharge of a debt or liability but the onus is initially on the complainant to establish the basic facts of the case such as issuance of the cheque and its subsequent dishonour. Once their facts are established, the burden shifts to the accused to rebut the presumption. As such absence of Sandip Chatterjee for not facing the dock for cross- examination caused prejudice to the respondent No. 2 and as he did not face the dock, the accused did not get any opportunity to rebut his case as his evidence and examination should be based on the affidavit in chief of Sandip Chatterjee under section 145 of N.I. Act. The accused did not get the opportunity to rebut the contents of the complainant filed by Sandip Banerjee and as such his absence is prejudicious. The complainant has also not made any attempt to bring the said witness to the witness box. In fact the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. During examination in chief in order to prove the prosecution case complainant company has filed the loan agreement dated 06.04.2009, disclosing the loan transaction. They have also filed the impugned cheque as well as the cheque return memo and the demand notice along with postal receipt and acknowledgment due card in support of service of demand notice. 14. Unfortunately while proceeding to the logical conclusion, in connection with the instant proceeding, learned Trial Court refused to address on the documents which are condition precedent for initiating any prosecution under N.I. Act and on the contrary simply because two affidavit in chief filed on behalf of the complainant and since both of them were signed by Sandip Chatterjee, who lodged the complaint and since the substituted dejure complainant, Jayanta Halder did not file any affidavit in chief so learned Trial Court without considering any other point acquitted the accused person. 15. Before going to further details let me reproduce the relevant portion of the impugned judgment, by which the order of acquittal was recorded by the court below:- So, the situations is that, the affidavit u/s 145N.I. Act on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re complainant, and it must necessarily associate a human being as de facto complainant to represent the former in court proceedings and no magistrate shall insist that the particular persons, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceeding because there may be occasion when different person can represent the company and it is open to the dejure complainant to seek permission of the court for sending any other person to represent company in court. Thus even assuming that initially there was no authority, still the company can at any stage rectify that defect and at a subsequent stage the company can send a persons who is competent to represent the company as held in M/S M.M.T.C. ltd. and another Vs. Medchi Chemicals pharma (P) ltd. reported in (2002)1 SCC 234. 18. It is undoubtedly true that the entire prosecution case herein is based on documentary evidence, and the offence alleged is punishable under section 138 of the N.I. Act. Accordingly what is required to be adjudicated by the court is whether from the available documents the complainant would have raised prima facie case in his favour and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest of the accused has been seriously prejudiced as also accused did not get any opportunity to rebut his evidence and examination is supposed to be on the basis of affidavit in chief of Sandip Chatterjee. 20. However having considered aforesaid facts and circumstances of the case and having observed that the court below was not justified in acquitting the accused solely on the ground that first authorized representative of the company was not examined and also considering the ground reality that different persons may represent the company and it is open for the dejure complainant/company to substitute the human face representing dejure entity with leave of the court, the judgment impugned which did not address the other issues involved in the case is not sustainable in the eye of law and therefore, liable to be set aside. 21. In such view of the matter the impugned judgment dated 27th August 2021 passed by MM 17th Court Calcutta in complaint case no. C/6947 of 2023 is hereby set aside. The evidence adduced by PW-1 before the court below and the examination of accused under section 313 Cr.P.C. are hereby expunged. The court below is directed to conduct denovo trial from the p ..... 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