1 2025:CGHC:46697 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Reserved On 02/09/2025 Pronounced On 12 /09/2025 ACQA No. 257 of 2021 Jaiprakash Agrawal S/o Govind Prasad Agrawal Aged About 65 Years Proprietor of M/s Laljimal Dulichand Jewellers, Resident of Subhash Chowk, Raigarh, Tahsil And District Raigarh Chhattisgarh. ... Appellant versus Pramod Sharma S/o Radheshyam Sharma Aged About 40 Years Proprietor M/s Sharma Consultancy, Resident of Laxmipur, Beside Mittal Traders Gali, Opposite To Carmel School, Dhimrapur Road, Raigarh, Tahsl And District Raigarh Chhattisgarh. …. Respondent For Appellant : Mr. Hari Agrawal, Advocate appears along with Ms. Pragati Pandey, Advocate For Respondent : Mr. Anand Dadariya, Advocate Single Bench : Hon'ble Shri Justic e Sanjay S. Agrawal CAV Judgment 1. This appeal has been preferred by the complainant under Section 378(4) of the Code of Criminal Procedure, 1973, questioning the legality and propriety of the judgment dated 22.02.2020 passed in Criminal Appeal No.158/2019, whereby the Fifth Additional Sessions Judge, Raigarh, (C.G.) while reversing the judgment dated ARPAN SRIVASTAVA Digitally signed by ARPAN SRIVASTAVA Date: 2025.09.12 15:16:18 +0530 2 17.10.2019, passed by the Judicial Magistrate First Class, Raigarh in Complaint Case No. 269/2018, has dismissed the complaint filed under Section 138 of the Negotiable Instruments Act, 1881, (hereinafter referred to as ‘the Act, 1881’). 2. The facts, which are essential for adjudication of this appeal are that, the respondent- Pramod Sharma, the Proprietor of ‘Sharma Consultancy’, has purchased the ornaments worth Rs.7,23,987/- (Rupees Seven Lacs Twenty Three Thousand Nine Hundred Eighty Seven Only), on credit, on 10.03.2018 from the appellant’s proprietorship concern, known as ‘Laljimal Dulichand Jewellers’ and, on 12.03.2018, he came and has given a post-dated cheque, amounting to Rs.7,23,987/- for 22.05.2018 (Ex.P/2), bearing No.799407 drawn on the State Bank of India at Branch Kondatarai (Raigarh), as the sufficient amount was not available with him. Upon receiving the alleged post-dated cheque on 12.03.2018, it was presented by the appellant in his Karnataka Bank Branch at Raigarh, for its withdrawal, but, it was returned by the State Bank of India on 23.05.2018 with an endorsement “insufficient fund”. A notice, dated 02.06.2018 was, therefore, issued by the appellant, the proprietorship concern, through its power of attorney holder requesting the respondent for its payment within a period of 15 days upon its receipt but, in response, it was stated by him in his reply dated 12.06.2018, that no cheque as such was issued by him and, instead, a blank cheque was given to his younger brother for the security of the loan amount of Rs.70,000/- (Rupees Seventy Thousand Only), which he had borrowed from him. The appellant 3 has, therefore, constrained to file the complaint under Section 138 of the Act, 1881, read with Section 420 IPC through his son namely, Rishabh Agrawal, the exclusive Power of Attorney Holder. 3. In support of his claim, the appellant through his son, the power of attorney holder, deposed that the respondent, being familiar with him, came on 10.03.2018 and had purchased the ornaments from his shop worth Rs.7,23,987/- on credit while producing the credit memo (Ex.P/1) and, deposed further that, he issued a post-dated cheque (Ex.P/2) bearing No.799407 on 12.03.2018 for payment of the alleged amount and has executed a letter (Ex.P/4) to this effect written by his relative, namely, Vikrant Sharma. 4. The respondent- Pramod Sharma (DW/1) in his evidence has admitted the signature of him, put on the alleged cheque (Ex.P/2), but has denied the fact that on 10.03.2018, he had purchased the alleged ornaments worth Rs.7,23,987/- from the shop of the appellant. Vikrant Sharma (PW/2), who appeared on his behalf, though admitted that the alleged letter (Ex.P/4) was written by him, but was unable to state that who have put the signatures on it. 5. The trial court, after considering the evidence led by the parties, arrived at a conclusion that the alleged post-dated cheque (Ex.P/2) was issued by the respondent- Pramod Sharma against the purchase of ornaments on credit, worth Rs.7,23,987/-, which was dishonored on its presentation on 23.05.2018 by the State Bank of India Branch at Kondatarai (Raigarh), owing to “insufficient fund” in his account, who has failed to pay the same despite issuance of 4 demand notice (Ex.P/5). In consequence, he was held guilty for the offence punishable under Section 138 of the Act, 1881 and awarded sentence of one year simple imprisonment, along with compensation of Rs. 10,00,000/-(Rupees Ten Lacs Only) under Section 357(3) of Cr.P.C., coupled with a default sentence of two months. 6. The aforesaid judgment of conviction and order of sentence has been reversed by the appellate court in appeal preferred by the respondent, holding inter alia, that since there is no averment in the complaint that the said power of attorney holder was aware regarding the alleged transaction, nor was the witness to the alleged transaction, nor requisite pleading to this effect was revealed from the said power of attorney (Ex.P/9), as such, conviction of the respondent and the sentence as awarded to him by the trial court, cannot be held to be sustainable in the light of the dictum laid down by the Supreme Court in the matter of A.C. Narayanan Vs. State of Maharashtra and Another, reported in (2015) 12 SCC 203. This is the order, which has been impugned by way of preferring this appeal. 7. Learned counsel appearing for the appellant/complainant submits that the learned appellate court has erred in reversing the findings recorded by the trial court while misinterpreting the principles laid down in the said matter of A.C. Narayanan Vs. State of Maharashtra and Another (Supra). While referring to the contents made in the alleged power of attorney (Ex.P/9), contended that the exclusive power of attorney holder, who is the son of the proprietor of the said proprietorship concern, was not only present at the 5 relevant point of time, but was very well aware of the alleged transaction, however, the supporting evidence revealed from the alleged power of attorney (Ex.P/9) was not taken into consideration in its proper manner and, thereby erred in holding that he was not aware regarding the alleged transaction while dismissing the complaint. In support, he placed his reliance upon the decision rendered by the Supreme Court in the matter of TRL Krosaki Refractories Limited Vs. SMS Asia Private Limited and Another, reported in (2022) 7 SCC 612. 8. On the other hand, Mr. Anand Dadariya learned counsel appearing for the respondent, while referring to the averments made in the complaint, submits that since there was no specific averment made therein that the said power of attorney holder was the witness of the alleged transaction, or was aware regarding it, therefore, in absence of specific assertion made in the complaint, there is no infirmity in the order impugned passed by the appellate court dismissing the complaint in the light of the principles laid down by the Larger Bench of the Supreme Court in the matter of A.C. Narayanan Vs. State of Maharashtra and Another, reported in (2014) 11 SCC 790. Insofar as the principles laid down in the matter of TRL Krosaki (Supra) is concerned, it is contended that the facts involved therein are distinguishable from the facts involved herein and would, therefore, not support the contention of the appellant. 9. I have heard learned counsel appearing for the parties and perused the entire record carefully. 6 10. The question, which arises for determination in this appeal is, “Whether the finding of the appellate court dismissing the complaint while reversing the finding of the trial court holding that in absence of specific averment made in the complaint that the power of attorney holder of the said proprietorship concern was aware regarding the alleged transaction, made on 10.03.2018, by placing reliance upon the principles laid down by the Supreme Court in the matter of A.C. Narayanan Vs. State of Maharashtra and Another, reported in (2015) 12 SCC 203, could be held to be sustainable in the eye of law?” 11. From perusal of the record, it appears that the respondent- Pramod Sharma has purchased the ornaments worth Rs.7,23,987/- (Rupees Seven Lacs Twenty Three Thousand Nine Hundred Eighty Seven Only) from the proprietorship concern of Jaiprakash Agrawal on 10.03.2018, on credit. The credit memo (Ex.P/1) was issued by him in the name of the said respondent, who, two days thereafter, came, i.e. on 12.03.2018 and issued a post-dated cheque bearing No.799407 drawn on the State Bank of India Branch at Kondatarai (Raigarh), in presence of his relative namely-Vikrant Sharma (DW/2) as evidenced by the letter dated 12.03.2018 (ExP/4), who has admitted the execution of it, but was, however, unable to state, who have put the signatures on it. 12. Perusal of the record would reveal further that the alleged cheque (Ex.P/2) was presented by the appellant in his account of Karnataka Bank Branch at Raigarh, but, was dishonored on 23.05.2018 by the State Bank of India with an endorsement “insufficient fund”. The demand notice dated 02.06.2018 (Ex.P/5) was, therefore, issued by 7 the appellant through his power of attorney holder, but, despite the issuance of the same, the respondent has failed to pay the alleged amount, which led to filing of a complaint by him through his son, namely- Rishabh Agrawal, the exclusive power of attorney holder. 13. Perusal of the alleged power of attorney (Ex.P/9), executed by the appellant-Jaiprakash Agrawal, the proprietor of the said shop, known as “Laljimal Dulichand Jewellers”, would reveal the fact that he met with an accident in the month of May, 2017 and since then, his said son was managing his proprietorship concern, as he barely could come to his shop and, perusal of it would show further that his said son was aware regarding the alleged transaction. A relevant portion revealing the said fact is extracted as under:- " मई 2017 म मरा कारा दुर्घ टना हुआ था जिसस मझे काफी चोट आई था तथा उक्त दुर्घ टना म मरा लीवरा म भी चोट आई था जिसका बाद स म" अस्वस्थ राहना का काराण अपना दुकाना म काभी काभीरा ह आ पत हूं* मरा अनापस्थिस्थतित म मरा स*स्थना का स*चोलीना मरा छोट पत्र ऋषभी अग्रवली आ. …… य प्रकाश अग्रवली का द्वारा तिकाय त ह6 चो7*तिका म6 अस्वस्थ राहत हूं* औरा स्वस्थगत काराण: स अपना फीम का स*चोलीना काराना म तिनायमिमत नाह< हूं* मरा अनापस्थिस्थतित म मरा फीम का स*प7ण स*चोलीना मरा छोट पत्र ऋषभी अग्रवली कारात ह6 उक्त र्घटना का स*बा*ध म भी ऋषभी अग्रवली मरा सथा उस वक्त दुकाना परा उपस्थिस्थत था उस इस स*बा*ध म स*प7ण नाकारा ह" इस काराण स म" अपना पत्र ऋषभी अग्रवली आ. यप्रकाश अग्रवली उम्र 35 वष तिनावस सभीष चो@का सदरा बारा रायगढ़ छो. ग. का खास मस्थिCतयरा तिनायक्त कारा उस यह अमिधकारा दत हूं* तिका वह प्रमद शम का द्वारा प्रदत्त चोका अनादराण का स*बा*ध म स*प7ण कानाना काय वह कारा, अमिधवक्त तिनायक्त कारा अमिधवक्त का मध्यम स तिवमिधका नाटिटस प्रतिषत काराय, परिरावद दयरा कारा, परिरावद म मरा ओरा स उपस्थिस्थत हकारा अपना बायना द काराय परिरावद का समस्त काय वह म मरा ओरा स उपस्थिस्थत राह एव* ह* ह* भी मरा हस्तक्षरा का आवश्यकात ह मरा गह अपना हस्तक्षरा कारा ऐस समस्त काय वह उक्त 8 परिरावद का स*बा*ध म ह वह मरा ओरा स तिनाष्पटिदत कारा उसका द्वारा तिनाष्पटिदत तिकाय गय प्रत्यका काय मरा द्वारा तिनाष्पटिदत तिकाय गय ह6 यह मना वग…… .. 14. Although, it was mentioned in the aforesaid power of attorney (Ex.P/9) as such, but specific averment and assertion to this effect that the power of attorney holder was aware regarding the alleged transaction, made on 10.03.2018, has, however, not made in the complaint. Therefore, the evidence of the said power of attorney holder cannot be taken into consideration that he was aware regarding the alleged transaction for want of proper assertion to this effect in the complaint, in view of the principles laid down by the Larger Bench of the Supreme Court in the matter of A.C. Narayanan Vs. State of Maharashtra and Another, reported in (2014) 11 SCC 790, wherein, it was answered, upon reference, at para 33.3 as under:- “33.3. it is required by the complainant to make specific assertion as to the knowledge of the power-of-attorney holder in the said transaction explicitly in the complaint and the power-of- attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case…...” 15. Now, insofar as the principles laid down by the Supreme Court in the matter of TRL Krosaki (Supra), reported in (2022) 7 SCC 612 as relied upon by the counsel appearing for the appellant, is concerned, it is to be noted that the principles laid down therein are, however, entirely on different footing, as in the said matter, the complaint was filed in the name of the “Company”, the payee, 9 through its authorized officer, who was the witness of the alleged transaction as revealed from the supporting document, like the “Agreement”, where his signature was found to be depicted. In view of the said factual scenario, it was, therefore, held that the same is required to be viewed from a different angle when the “Complainant” is a “Company”. The relevant observation made to this effect at paragraphs 22 and 25 read as under:- “22. Despite our conclusion that the documents available on record would on facts satisfy the requirement relating to delegation of power and also knowledge of the transaction by the person representing the Company in the instant case, it is also necessary for us to keep in perspective that though the case in A.C. Narayanan vs. State of Maharashtra (2014) 11 SCC 790 has taken the centre stage of consideration, the facts involved therein were in the background of the complainant being an individual and the complaint filed was based on the power of attorney issued by the "payee" who was also an individual. In such an event, the manner in which the power was being exercised was to be explicitly stated so as to establish the right of the person prosecuting the complaint, to represent the payee i.e. the complainant. The position that would emerge when the complainant is a company or a corporate entity will have to be viewed from a different standpoint.” 25. In that view, the position that would emerge is that when a company is the payee of the cheque based on which a complaint is filed under Section 138 of the NI Act, the complainant necessarily should be the company which would be represented by an employee who is authorised. Prima facie, in such a situation the indication in the complaint and the sworn statement (either orally or by affidavit) to the effect that the complainant (Company) is represented by an authorised person who has knowledge, would be sufficient. The employment of 10 the terms "specific assertion as to the knowledge of the power-of-attorney holder" and such assertion about knowledge should be "said explicitly" as stated in A.C. Narayanan vs. State of Maharashtra (2014) 11 SCC 790 cannot be understood to mean that the assertion should be in any particular manner, much less only in the manner understood by the accused in the case……….When, the complainant/payee is a company, an authorised employee can represent the company. Such averment and prima facie material is sufficient for the learned Magistrate to take cognizance and issue process………” 16. In the instant matter, the proceedings under Section 138 of the Act, 1881 has been initiated by the “Proprietorship Concern” through its power of attorney holder and, not by the “Company” through its authorised officer, therefore, under such circumstance and particularly, in the light of the dictum laid down by the Larger Bench of the Supreme Court in the matter of A.C. Narayanan Vs. State of Maharashtra and Another, reported in (2014) 11 SCC 790, the specific assertion as to the knowledge of the power of attorney holder regarding the alleged transaction was to be made in the complaint, which is, however, completely missing. Therefore, no reliance could be placed upon the principles laid down by the Supreme Court in the matter of TRL Krosaki (Supra) and, the appellate court has, thus, not committed any illegality in allowing the appeal preferred by the respondent-Pramod Sharma. 17. Consequently, the appeal being devoid of merit is dismissed. Sd/- (Sanjay S. Agrawal) Judge Arpan