1 2025:CGHC:8608 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 1146 of 2024 1 - Sumit Das, Partner Hariom Tractor, Narayanpur, Tahsil And District- Narayanpur (Detail Of Applicant, Sumit Das, Aged About 32 Years, S/o Late Shri Swapan Das, Now R/o Shitla Para, Chhote Kapsi, Pv-7, Tahsil Pakhanjore, District- Utter Bastar) C.G.) ... Appellant Versus 1 - Maharu Ram S/o Shri Pandi Ram, R/o Karmari, Post-Bakulwahi, Tahsil And District - Narayanpur (C.G.) ... Respondent For Appellant : Mr. Parag Kotecha, Advocate For Respondent : Mr. Vaibhav A. Goverdhan, Advocate SB : Hon'ble Shri Justice Narendra Kumar Vyas ORDER ON BOARD 19.02.2025 1. The appellant/complainant has filed this appeal assailing order dated 27.09.2024 passed by the learned Judicial Magistrate First Class, Narayanpur, District- Narayanpur (C.G.) in Criminal Case No. 265/2019 “Sumit Das Vs. Maharu Ram” by which, the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, SHUBHAM DEY Digitally signed by SHUBHAM DEY 2 1881 has been dismissed by the learned Trial Court on the ground that the present complainant i.e. Sumit Das was not authorized to lodge complaint as no authority letter has been placed on record to demonstrate that he is authorized/responsible to file complaint. 2. Case of the complainant in brief is that the complainant/appellant i.e. Sumit Das who is a partner of the firm namely, Hariom Tractor, Narayanpur had filed a complaint under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter for brevity referred to as the Act, 1881) before the Judicial Magistrate First Class, Narayanpur stating that the respondent has purchased a Tractor i.e. Swaraj bearing Model No. 834 XM which is valued for Rs. 6,50,000/ from the respondents. At the time of purchasing of the said tractor, the respondent had to pay an down payment of Rs. 2,25,000/- (in cash) and the remaining amount of Rs. 4,25,000/- was to be paid through the finance company to the complainant. It is also the case of the complainant that the complainant has made the payment through finance company, but the advance which was to be paid was paid only Rs. 80,000/-. It is also the case of the complainant that he has made communication to the respondent for payment of the said remaining amount, but no response was made by the respondent. Thereafter, after some time, he gave a cheque bearing no. 111695 dated 21.08.2019 amounting to Rs. 1,20,000/- towards the payment of Rs. 1,20,000 which has to be paid towards advance, but the said amount as mentioned in the cheque was dishonoured with a note of “insufficient funds” and the same was returned back to the complainant and thereafter, he also sent a legal notice to the complainant as required under Section 138 of the Act, 1881 but no reply was made on the part of the respondent which 3 necessitated the complainant to file the present complaint. 3. It is further contended that the complainant to substantiate its case has exhibited the documents i.e. Cheque bearing no. 11695 of Dena Bank dated 04.09.2019 (P-1), Cheque Forwarding Memo (P-2), Registered Demand Notice (P-3), Postal Receipt (P-4), Legal Notice Return (P-5) and Partnership Deed (D-6) and also, in support of his contention has examined himself by way of filing an affidavit under Section 145 of the Act, 1881 and the said witnesses was also cross-examined wherein, he has admitted that he has received the amount of Rs. 50,000/- - Rs. 50,000/- through receipt Ex. D-1 and Ex. D-2 and amount of Rs. 2000- Rs. 2000/- each through Ex. D-3 & Ex. D-4 and amount of Rs. 1500 through Ex. D-5. Thus, the applicant had admitted that he has received Rs. 1,05,500/- by way of the above documents. He has also admitted in the cross-examination that whatever the amount he has received from the respondent, he has not mentioned the receipt number of the same in the notice. 4. It is further submitted that the respondent has not examined any witnesses, but he has examined himself under Section 313 of the Cr.P.C. wherein, he has admitted that he had paid Rs. 1,05,500/- and the receipt is also enclosed, still the appellant has filed a false complaint against him. The learned Trial Court on the basis of the evidences and material brought on record has dismissed the complainant of the complainant/appellant vide order dated 27.09.2024 on the ground that the complainant was not an authorized person to file the compliant. Being aggrieved with this impugned order dated 27.09.2024, the appellant has preferred this acquittal appeal. 4 5. Learned counsel for the appellant would submit that the appellant is the partner of the partnership firm i.e. Hariom Tractor, Narayanpur which is registered under the provisions of the Partnership Act, 1932. He is an authorized person to file a complaint, therefore, the finding recorded by the learned Trial Court is contrary to law and the order impugned dated 27.09.2024 passed by the learned Trial Court deserves to be dismissed. He would further submit that apart from the said finding there is no other material recorded by the learned Trial Court to pass the impugned order dated 27.09.2024 dismissing the complaint filed by the appellant/complainant. He would further submit that in the memo of appeal he has also annexed the partership deed wherein in paragraph 15 it has been mentioned any of the partner shall be entitled and duly authorised to represent the firm before any local authority, State Government or Central Government and to enter into any kind of contract or other undertaking and perform all obligations to assign agreement, receipt, payment, transfer, conveyance, etc. on behalf of the firm. As such, the trial Court has committed illegality in dismissing the complaint on the count that petitioner is not authorised to file the complaint. 6. On the other hand, learned counsel for the respondent vehemently opposes the submissions made by the learned counsel for the appellant and would submit that the present complainant/appellant i.e. Sumit Das is not an authorized person/authority to file complaint against the respondent as such there is no illegality committed by the learned Trial Court in passing the impugned order dated 27.09.2024 He would further submit that as per Section 56 of the Act, 1881, if any amount towards the cheque has been received, therefore, it has to be 5 endorsed in the cheque which, the complainant/appellant has deliberately and mischievously not done and therefore, there is violation of Section 56 of the Act, 1881 and on this count also, the present appeal deserves to be dismissed. He would further submit that he has already exhibited Ex. D/1 to D/5 which are the receipts of payment wherein, it has been clearly mentioned that the respondent has paid a sum of Rs. 1,05,500 to the complainant/appellant. In support of his contention, learned counsel for the respondent relies upon the judgment of the Hon’ble Supreme Court in the case of Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel (2023) 1 SCC 578 . Thus, the present appeal is liable to be dismissed. 7. I have heard learned counsel for the parties and perused the records with utmost circumspection. 8. From the submissions made by the counsel for the respective parties, the point emerged for determination of the court is: i Whether the finding of the learned Trial Court in dismissing the complaint is legal and justified. ii Whether there is non-compliance of Section 56 of the Act, 1881 which vitiated the entire trial. 9. To appreciate point (i), it is expedient for this Court to go through the documents and evidences placed on record. In the evidence, the complainant/appellant has categorically stated that he is an authorized person to file a complaint. He has submitted the photocopy of the partnership deed of the firm i.e. Hariom Tractors, Narayanpur along with the memo of appeal and also filed an application under Sectio 432 of Bhartiya Nagrik Suraksha Sanhita wherein he has prayed for taking 6 the deed of partnership on record wherein it has been mentioned that he is an authorized person to file a complaint. He would further submit that this vital document can really throw light on the conterversy between the party, as such he would pray for taking the document on record and reminding the matter for fresh adjudication by the trial Court. Considering the fact that the non-submission of deed of partnership is not such a fatal which can allow the trial Court to dismiss the complaint on this count alone therefore, I am of the view that the deed of partnership is taken on record and the trial Court will consider the same while conducting the trial afresh. The accused is also at liberty to raise objection about authority of the complainant to file the complaint on the strength of deed of partnership. Accordingly, the point (i) is decided. 10. With regard to the finding on point (ii), to appreciate the submission, it is expedient for this Court to ascertain Section 15 and Section 56 of the Negotiable Instruments Act, 1881 which reads as under:- “15. When the maker or holder of a negotiable instrument signs the same, otherwise than as such maker, for the purpose of negotiation, on the back or face thereof or on a slip of paper annexed thereto, or so signs for the same purpose a stamped paper intended to be completed as a negotiable instrument, he is said to indorse the same, and is called the "indorser". 56. No writing on a negotiable instrument is valid for the purpose of negotiation if such writing purports to transfer only a part of the amount appearing to be due on the instrument; but where such amount has been partly paid, a note to that effect may be indorsed on the instrument, which may then be negotiated for the balance.” 7 Section 15 of the Act, 1881 provides for endorsement of the cheques and Section 56 of the Act, 1881 provides for endorsement with regard to part-payment of the dues which has been made behind the cheque. It means whatever the amount is paid through the cheque, before submission of the cheque is received by the complainant, it has to be endorsed in the cheque, therefore, the debt can be ascertained to the extent which has already been received by the complainant. 11. This was vehemently objected learned counsel for the appellant and would submit that this point had never been raised before the learned Trial Court therefore, this point should not have been raised before this Court and he would pray for remand on this count also. 12. In the present case, though the accused in the cross-examination of the complainant has exhibited the payment receipts as Ex. D/1 to D/5 but no such evidence was placed on record by the accused to examine himself that the amount mentioned in Ex.D/1 to D/5 to the tune of Rs. 1,05,500/- in lieu of cheque amount of Rs. 1,20,000/- which has been bounced due to insufficient fund and subject matter of the complaint. The record of the case would further demonstrate that the accused was examined under Section 313 of the Cr.P.C but not examined himself and this fact is within the knowledge of the accused as such the submission made by the counsel for the respondent is partly accepted by the Court and matter is remitted back to the trial Court to consider the case in terms of Section 56 of the N.I. Act as well as the law laid down by the Hon’ble Supreme Court in the case of Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel (2023) 1 SCC 578 by giving opportunity of leading evidence to the 8 complainant and to the accused. Accordingly, the point (ii) is decided. 13. In view of the foregoing discussions and observations, the appeal is allowed in part. Since the matter has been remitted to the learned trial Court and the complainant and the accused have already entered appearance before this Court, they are directed to appear before the Trial Court on 08.05.2025 without notice from the trial Court. Certified copy as per rules. Sd/- (Narendra Kumar Vyas) Judge Dey