1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5694 OF 2010 WITH CRIMINAL APPEAL NO.931 OF 2010 Transport Corporation of India Ltd. ..Applicant. v/s. Gloreal Filteration System Pvt. Ltd. ..Respondents. sns Mr. Satish Upadhye i/by Ajay K. J. Panicker, adv. for the Applicant/Appellant. Ms P.P.Shinde, APP for the respondent/State. CORAM : J.H.BHATIA, J. DATE : 13th October, 2011 PC : 1 In spite of service, none appears for the respondents/accused. 2 Heard the learned counsel for the appellant/applicant, who is original complainant and perused the record. Taking into consideration the controversy, the application and the appeal may be finally disposed off. Therefore, leave to prefer appeal granted. 3 The complaint was filed by one Naresh Gour, as a branch manager and authorised signatory of the Transport Corporation of India Ltd. against the respondents under Section 138 of the Negotiable Instruments Act and it came to be registered as Summary Case No.38954/2008 in the Court of J.M.F.C., Pune. The complainant and his advocate were absent on 28.7.2010 when the case was fixed for cross-examination while two 2 accused persons were present. The learned Magistrate dismissed the complaint and acquitted the accused under Section 256 of the Cr.P.C. That order is sought to be challenged in the present appeal filed by the Transport Corporation of India Ltd. 4 The impugned order and the certified copies of the relevant record reveal that the case was pending for the cross-examination of the complainant. On 5.7.2010, an application for adjournment was made on behalf of the complainant on the ground that the complainant was busy in sister's marriage. The application was opposed on behalf of the accused as several adjournments were already taken by the complainant. The learned Magistrate granted that application for adjournment as a last change subject to payment of cost of Rs.400/- and adjourned case to 17.7.2010. On 17.7.2010 none appeared for the complainant and, therefore, the matter was further adjourned to 28.7.2010 for passing the order of the dismissal of the case. Thus, it was warning to the complainant that if he does not appear on the next date, the case would be dismissed. On 28.7.2010 again none appeared for the complainant and, therefore, by the impugned order complaint came to be dismissed under Section 256 of the Cr.P.C. The learned counsel for the complainant contends that there was mistake in giving dates. On perusal of the photocopies of the order passed by the learned Magistrate on 5.7.2010 as well as Roznama of that date, I find no 3 mistake or any change in the date. It clearly shows that the matter was adjourned to 17.7.2010 and not to 17.8.2010 as contended by the complainant on 17.7.2010, the matter was on board and on that day, none appeared and it was adjourned to 28.7.2010 and on that date, it was dismissed. 5 The learned counsel for the applicant has produced the certified copies of the cause lists of 5.7.2010 as well as 17.8.2010. It shows that on the cause list dated 5.7.2010, the next date was shown as 17.8.2010 and on the cause list of 17.8.2010 also this matter was shown. The learned counsel contends that in view of the date shown on the cause list, the complainant was misled and, therefore, he could not appear on 17.7.2010 or 28.7.2010. Therefore, it was not intentional absence on that day. There appears substance in his contention. 6 It appears that the payee of the cheque was Transport Corporation of India Ltd., who is the appellant before this Court but the complaint was not filed by the payee or the present appellant. Complaint is filed by one Naresh Gaur as authorised signatory of the Transport Corporation of India Ltd. Naresh Gaur himself admitted that he was not the payee of the cheque. It is settled position of law that the complaint under Section 138 of the Negotiable Instruments Act can be filed only by payee or the holder in due course of the cheque, as the case may be, as per section 4 142 of the Negotiable Instruments Act. It is also settled position of law that while complaint can be filed by payee through power of attorney or any authorised signatory, such power of attorney holder or authorised signatory himself can not be the complainant on behalf of the payee and if the complaint is filed by the authorised signatory or power of attorney holder on behalf of the payee, that complaint is not tenable under the law. [See: Shankar Finance & Investments v/s. State of A.P. 2009(4) All MR 480 and Vilas v/s. Mayuri 2011 (1) Mh.L.J.777] In view of this, the complaint itself was not tenable. Another difficulty is that the appeal is not filed by the complainant Naresh Gour but by the Transport Corporation of India Ltd, which was never complainant before the Trial Court and in view of this, the appeal is not tenable. 7 In view of the above circumstances, even though the complainant could not remain present before the trial Court on 17.7.2010 or on 28.7.2010 due to some bonafide cause firstly, the complaint is not tenable in view of the language of section 142 and secondly, the appeal itself is not tenable and on that ground, it can not succeed and, therefore, allowing the appeal and remanding the matter will be futile exercise. 5 8 Therefore, while application no.5694/2010 is allowed, Criminal Appeal No.931 of 2010 stands dismissed. (J.H.BHATIA, J.)