Vijay Mittal vs. Ashwani Kapoor & another Cr.MP(M) No. 2310 of 2024 Reserved on: 17.07.2024 27.07.2026 Present: Ms Chehak Bhalla, Advocate, vice Mr N.K. Bhalla, Advocate for the applicant/petitioner. Mr Anubhav Chopra, Advocate, for non- applicant/respondent No.1 Mr Tarun Pathak, Deputy Advocate General, for non-applicant/respondent No.2/State. The appellant/applicant has filed the present application for seeking leave to appeal against the judgment dated 03.10.2023 passed by the Learned Additional Sessions Judge-I, Solan, District Solan, H.P. vide which the judgment of conviction dated 24.12.2013 and order of sentence dated 09.01.2014 passed by the learned Judicial Magistrate, First Class, Court No. II, Kasauli, District Solan, H.P. (learned Trial Court) were set aside, and respondent No. 1 (accused before learned Trial Court) was acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (N I Act). It is asserted that the cheque was not issued as a partner of the firm. The statement of account proved the existence of a legally enforceable debt. Respondent No.1/accused is a partner in Superior Technology and M/s Shree Nath Jee Electronics. 2 Respondent No. 1 tried to intermingle the transactions of two firms. The notice was sent to the correct address, and the learned Appellate Court erred in acquitting the accused on the ground that the notice was not served upon the accused. Therefore, it was prayed that the present application be allowed and the leave to appeal be granted. 2. I have heard Ms Chahak Bhalla, learned Vice Counsel representing the applicant/appellant, Mr Anubhav Chopra, learned counsel for non- applicant/respondent No.1 and Mr Tarun Pathak, learned Deputy Advocate General, for non- applicant/respondent No.2/State. 3. Ms Chahak Bhalla, learned Vice Counsel representing the applicant/appellant submitted that the learned Appellate Court erred in reversing the well- reasoned judgment passed by the learned Trial Court. It was wrongly held that the complainant had failed to prove the existence of a legally enforceable debt and the notice was not served upon the respondent No. 1/accused. Respondent No.1/accused had admitted in the audit report the existence of the debt due to the complainant; an acknowledgement signed by some person was based on record, which established the 3 delivery of the notice upon the accused. The present appeal involves arguable points. Hence, she prayed that the present application be allowed and leave to appeal be granted. She relied upon the judgment of the Hon’ble Supreme Court in Dhanasingh Prabhu vs. Chandersekar and others (2025) 10 SCC 96 in support of her submission. 4. Mr Anubhav Chopra, learned counsel for the non-applicant/respondent No.1 submitted that the learned Appellate Court has passed a well-reasoned judgment, which is duly supported by the material on record. There are no arguable points involved in the present case. Hence, he prayed that the present application be dismissed. 5. Mr Tarun Pathak, learned Deputy Advocate General, for non-applicant/respondent No.2/State submitted that the dispute is between the private parties and the State has no submissions to make. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. The learned Appellate Court held that the complainant had failed to prove the existence of 4 debt/liability. This finding cannot be prima facie sustained. An audit report prepared under Section 44AB of the Income Tax Act (Ext.DW7/C) on behalf of Superior Technology shows that an amount of ₹34,95,000/- was due towards Mittal Traders and the balance was transferred to M/s Shree Nath Jee Electronics. Accused- Ashwani Kapoor (DW7), stated in his examination-in-chief that he has two firms, Superior Technology and M/s Shree Nath Jee Electronics. Thus, prima facie, the existence of the debt/liability was proved. 8. Learned Appellate Court also held that the service of the notice was not proved. The applicant had placed on record the acknowledgement (Ext.CW-4/G), which was issued to respondent no. 1/accused at his Parwanoo address, the same address which was furnished by him before the learned Appellate Court. The receipt of the acknowledgement would corroborate the complainant’s version that the notice was duly served upon the respondent no. 1/accused. 9. The learned Appellate Court also held that the complaint was not made in the name of Mittal Traders and other partners were not impleaded. The Hon’ble Supreme Court held in Dhanasingh Prabhu 5 (supra) that a partnership firm does not have an independent existence like a company and a partner is authorised to act on behalf of the firm. Therefore, prima facie, this finding is contrary to the judgment of the Hon'ble Supreme Court. 10. Therefore, there are arguable points involved in the present appeal. Hence, the present application is allowed and the leave to appeal is granted. 11. The present application stands disposed of. Cr. Appeal No. 2026 (Cr.AST No. 618 of 2024) 12. The leave to appeal has been granted as per order passed in Cr.MP(M) No. 2310 of 2024. 13. The non-respondent No.1/accused is directed to furnish personal and surety bonds in the sum of ₹25,000/- to the satisfaction of the learned Trial Court/learned Additional Registrar (Judicial) of this Court within four weeks, undertaking to appear before this Court as and when directed to do so and surrender before the learned Trial Court in case of acceptance of appeal. 6 14. Learned Trial Court is directed to transmit the bonds, so furnished by the non- applicant/respondent No.1 for placing them on record. 15. The records of the learned Courts below have been received. 16. List the matter for hearing in due course. ( Rakesh Kainthla ) Judge 27th July, 2026. (Ravinder)