Criminal Misc. No.342-MA of 2007 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.342-MA of 2007 Date of decision : 05.12.2008 Punjab State Cooperative Supply and Marketing Federation Ltd. .....Petitioner Versus Amit Rice Traders and others ...Respondents CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Brijeshwar Singh, Advocate for Mr. Govind Goel, Advocate for the appellant. S. D. ANAND, J. The facts, as are relevant for the disposal of the controversy are as under:- Respondent no.1 is carrying on business of rice shelling etc. with respondents No.2 and 2 as its partners. Certain quantity of paddy was stored by the appellant in the premises of respondents/accused and, in lieu thereof, respondent no.2 Subhash Chand issued two cheques bearing No.CC/6-169043 and CC6-169044 dated 20.5.96 for Rs. 5 lacs each. On presentation to the banker of the appellant, the cheques were forwarded for the clearance to the banker of the respondents/accused who did honour the same by observing that the funds available in the account were insufficient for honouring the cheques afore-mentioned. On perusal of material obtaining on the file, learned Trial Magistrate non suited the applicant-appellant by observing that the complaint had not been filed by duly authorised person and also that no documentation had been proved on record to indicate that any paddy had Criminal Misc. No.342-MA of 2007 -2- *** been given by the appellant to the respondents/accused for shelling or that appellant was to receive money in lieu of the paddy stored in the premises of the respondents. The following observations, in the context of the former finding, were recorded by the learned trial Court. “The complaint has bee filed by branch of Markfed, Patti through branch manager Bachitter Singh, Principal Officer/Branch Manager. It is claimed in the complaint that Markfed, Patti is a juristic person/corporate body. No resolution has been produced on record passed under Punjab Cooperative Society Act, 1961 authorizing Bachitter Singh branch manager to file the present complaint. Later on complainant has taken steps for rectification of this mistake but again no resolution has been passed and it is only the report of legal officer of Markfed. Some documents Ex.PW4/A to Ex.PW4/F have been proved earlier as additional evidence through witness PW4 Tarsem Singh. Vide order of the learned Sessions Judge, Amritsar, while allowing criminal revision of accused, additional evidence of PW4 has been ordered to be washed from the record. Thereafter, no such order has been brought by the complainant vide which they have been allowed to prove any of these documents by way of additional evidence or the order of Hon'ble Sessions Judge has been stayed by the Hon'ble High Court of Punjab and Haryana. So nothing is on record to show that Bachitter Singh was duly authorized by Markfed to institute the present complaint. The learned defence counsel has argued that Ex.DX has been put to PW4, which can be read against Criminal Misc. No.342-MA of 2007 -3- *** accused. It is document which has been put to PW4 and evidence of PW4 has already been ordered to be washed away so Ex.DX cannot be read even against accused. Even by going through this document Ex.DX for the sake of arguments, it is not any letter of authorization or rectification letter or any resolution authorizing Bachitter Singh to institute the present complaint but it is only report of internal auditor pointing out lacunas regarding delegation of powers of filing complaint and petition under Negotiable Instrument Act in the case in hand. So in no way Ex.DX has ever authorized Bachitter Singh to file the present complaint. So this Court is of the considered view that this complaint is filed without any authority and Bachitter Singh was not competent to institute the complaint on behalf of Markfed Branch Patti. On this very ground, complaint is liable to be dismissed and accused are liable to be acquitted.” Qua the latter part of the finding, learned Trial Magistrate observed as under:- “By going through the evidence on record, this Court has further opinion that complainant has even failed to prove any legal liability against the accused. No word has been stated in the complaint that what was the legal liability against accused vide which they have issued cheques. In the complaint, it is alleged that paddy was stored in the premise of accused Nos.1 to 3 at Patti and in lieu of that paddy, Subhash Chand accused No.1 as partner of M/s Amit Rice Traders, Patti issued two cheques in question which were dishonoured. No Criminal Misc. No.342-MA of 2007 -4- *** such agreement has been produced on record by complainant that Markfed has to receive amount of paddy stored in the premisses of accused No.1. No such agreement has been brought on record and proved that any paddy was ever given to accused for shelling. When complainant has failed to prove that any paddy was given or any legal liability was existing against the accused then it is not established at all that cheques were issued against any legal liability. Otherwise also, merely handing over does not create any liability of receiving of any amount unless there is arbitration award or decree of Civil Court or there is agreement with the accused that they have to return money against paddy. In the evidence, PW3 Bachitter Singh, Grewal Branch Manager has also not stated any word regarding existing legal liability against accused and he has simply stated that accused Nos.2 and 3 owe a huge amount to Markfed and Subhash Chand has issued two cheques on 20.05.1996 for sum of Rs.5 lacs; each. No doubt, these cheques have been proved on record as Ex.PA and Ex.PB by this witness and memo vide which cheques were returned dishonoured is proved as Ex.PG. In cross-examination, PW3 has admitted that he has obtained order from the department for filing complaint and same was shown to his counsel. He has admitted that he has not constituted attorney of Markfed and explained that it is not required. As per the Punjab Cooperative Society Act, 1961 any such act has to be done by passing resolution. Neither any authority letter nor any such resolution has been proved. Criminal Misc. No.342-MA of 2007 -5- *** In my view, the complainant has also failed to establish this fact that any legal liability was existing against accused.” Apart therefrom, the learned Trial Magistrate also recorded the following observation in support of the finding that there is nothing on record to prove that respondent no.1 was a registered firm and that respondents no.2 and 3 were its partners:- “Another fact which complainant has to prove that whether accused No.1 was registered firm and accused Nos.2 and 3 are its registered partners. No such document is produced and proved on record that accused No.1 is registered partnership concern. Photocopy of partnership deed is brought on record as mark -A but neither original has been called nor proved nor copy of the same is proved by taking it from Registrar of firms. In this respect also, complainant has badly failed to prove that accused Nos.2 & 3 are partners and accused No.1 is registered firm. The authority as relied upon by learned defence counsel is fully applicable. Even the alleged cheques have not been signed by accused Kharaiti Ram and complainant has failed to establish any criminal liability of accused Kharaiti Ram.” I find that the findings of fact recorded by the learned Trial Judge are relatable to the material obtaining on the file and there is nothing perverse in the appreciation of evidence by the learned Trial Judge. Dismissed. December 05, 2008 (S.D. ANAND) Pka JUDGE