IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 559 of 2000 Date of Decision: 20th March, 2008 Chenab Textile Mills Ltd. Appellant Versus M/s R.G.B.J Silk Mills Pvt. Ltd. & others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr.Rakesh Jaswal, Advocate. For the respondents: Mr. C.N.Singh, Advocate, for respondents No.1 and 2. Mr. Ashwani K. Sharma, Advocate, for Respondents No.3 and 4. Sanjay Karol, J. (Oral) The present appeal arises out of judgment dated 25.3.2000 passed by Additional Chief Judicial Magistrate, Nurpur, District Kangra, H.P. in Private Complaint No. 62-II/92, titled as M/s Chenab Textile Mills vs. M/s R.G.B.J. Silk Mills Pvt. Ltd. and others, dismissing the complaint filed by the present appellant under Section 138 of the Negotiable Instruments Act. The complainant, a Company registered under the Indian Companies Act filed a complaint in the Court of Addl. Chief Judicial Magistrate, Nurpur, District Kangra, H.P. alleging that in relation to the business dealing which accused No.1 had with the complainant-company seven cheques i.e. No. Whether the reporters of Local Papers are allowed to see the Judgment? 2 166801 dated 3.1.1990 amounting to Rs.18,234/-; No. 166567 dated 3.1.1990 amounting to Rs.24,480/-; No.166848 dated 5.1.1990 amounting to Rs.12,373/-; No.166847 dated 5.1.1990 amounting to Rs.22,413/-; No.166851 dated 9.1.1990 amounting to Rs.46,061/-; No. 166321 dated 28.6.1990 amounting to Rs.7,93,393/- and No.166320 dated 28.6.1990 amounting to Rs.9,23,194/- were issued in favour of the complainant company. The cheques on presentation were, however, dishonoured for the reason that the amount exceeded arrangement. The complainant’s Bankers Jammu and Kashmir Bank Limited accordingly informed the complainant of the same vide Memos dated 29.6.1990 being Exts. CW-3/A/1 to Ext. CW- 3/A/5. The complainant accordingly issued a legal notice dated 9.7.1990 Ext.CW-1/A. The said legal notices were received by the accused persons on different dates and lastly on 17.7.1990. The postal receipts Ext.CW-1/B to Ext.CW-1/E and Acknowledgement Due Cards Ext.CW-1/F to Ext.CW-1/J were proved on record. Initially the complaint was filed by Shri S.N.Kacholia, Commercial Manager of the complainant, but, however, since he left the services of the company, Shri P.K.Mittal, was allowed to pursue the complaint in terms of orders dated 30.9.1996 passed by the trial Court. During trial, accused persons moved an application seeking dismissal of the complaint on the ground that the Court lacked jurisdiction as no cause of action has arisen within its territories and the complaint having not been instituted by a duly authorized person. The matter ultimately stood concluded in terms of order dated 17.10.1994 passed by this Court in Cr. MP(M) No. 163 of 1993 wherein it was held as under:- 3 “The submission of the learned counsel for the petitioner is that the cheque having been handed over at Bombay and dishonoured at Bombay, no cause of action arose within the territorial jurisdiction of the Magistrate and hence the proceedings are without jurisdiction. Admittedly, the cheque was drawn in favour of the complainant who could not get the payment for that cheque. In such a situation, it is difficult to accept that no cause of action arose at the place where the complainant resides. It was thereafter submitted that the complaint has not been filed by a properly authorized person. It is not in dispute that the complainant is the same person in whose favour the cheque was issued by the petitioner. Under the circumstances, complaint cannot be said to have been filed by any wrong person. The fact whether the complaint has been signed by a properly authorized person or not, is a matter to be decided during the trial. The petitioner would be free to cross-examine the witnesses on that score and if eventually it is found that the complaint was not filed by a properly authorized person, the Court would consider the fact in accordance with law.” In order to prove its case, the complainant examined three witnesses Sh. P.K.Mittal (CW-1), Shri Sunil Gupta (CW-2) and Sh.C.H.Patial, Officer United Bank of India (CW-3). No evidence was led by the accused. Vide impugned judgment dated 25.3.2000, the Court below dismissed the complaint on merits for the following reasons:- (a) Shri P.K.Mittal was not legally authorized by the complainant to pursue the complaint and conduct the proceedings. (b) There was nothing on record to prove the guilt and the liability of accused No. 2 to 4; (c) The Court had no territorial jurisdiction to deal with the matter as no cause of action had arisen within the jurisdiction of the Court, 4 particularly when, the complainant had filed a Civil Suit within the State of Jammu and Kashmir. Learned counsel for the appellant has assailed the impugned judgment on the ground (i) that it was not open for the Court below to adjudicate the issue of jurisdiction, keeping in view the decision rendered by this Court in Cr MP (M) No. 1063 of 1993, (ii) having come to the conclusion that the Court did not have the jurisdiction or that there was no authority with Mr. Mittal to pursue the complaint, the Court should not have decided the dispute on merits. I have heard the learned counsel for the parties and perused the record. While dismissing the complaint on the ground that no cause of action had arisen within the territorial jurisdiction of the Court, in my view, the Court below has committed a serious error in arriving at such a conclusion. The Court was bound by the decision rendered by this Court wherein it was held that keeping in view the admitted position, the Court would have the territorial jurisdiction to deal with the complaint. The Court was bound by the decision rendered by this Court. Therefore, the findings with regard to territorial jurisdiction of the Court to entertain the complaint are reversed. From the statement of Shri P.K.Mittal (CW-1), it is clear that initially Shri S.N.Kacholia, Commerical Manager, was authorized to sign and present the complaint as per power of attorney Annexure ‘A’. After the death of Shri Kacholia during the pendency of the complaint Shri G.C.Satsangi was authorized and thereafter Mr. P.K. Mittal was pursuing the complaint. However, from his sworn testimony, it is clear that no authorization or power of attorney, duly executed in his favour on behalf of the complainant company was proved on record. Therefore, it could not be said that Shri P.K. Mittal 5 was duly authorized by the complainant-company to conduct the proceedings on its behalf and any statement made by Shri P.K. Mittal could not be referred to and relied upon for the purpose of adjudication of the complaint. (M/s Satish and Company vs. M/s S.R.Traders, and others, 1998 Cri. L.J.419) I am in agreement with the findings returned by the Court below and the contention of learned counsel for the appellant is rejected. However, having come to the conclusion that the complaint was not being pursued by the duly authorized person or that the Court did not have the territorial jurisdiction, the Court below ought not to have decided the issue on merits holding the accused No. 1 to 4 not liable for the commission of the offence. The findings of the Court below on this point need to be reversed and ordered accordingly. For the aforesaid reasons, the appeal filed by the appellant is partly allowed and it is held that Shri P.K.Mittal had no authority to pursue the complaint. Therefore, the complaint was rightly dismissed by the trial Court. The appeal is disposed of with the aforesaid observations. 20th March, 2008 (Sanjay Karol) (C) Judge.