Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.587 of 2004. Date of Decision: August 1,2011. M/s Auto Donn. …… Appellant. Versus M/s Jai Durga Enterprises & others. …. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. Balwant Kukreja, Advocate. For the Respondents : Mr. Sumeet Raj Sharma, Advocate & Ms. Anu Tuli, Advocates, for the respondents. Surinder Singh, J (oral): The appellant filed a complaint against the respondents under Section 138 of the Negotiable Instruments Act, 1881, in short ‘the Act’, against the respondents alleging that the appellant being the sole proprietor of the firm M/s Auto Donn having its office and work at Kasauli Road, Parwanoo has been dealing in the business of supply of lubricants, mobile-Oils and other products. 2. It is alleged that respondent No.2 Shri Neeraj Tuli, Proprietor of M/s Jai Durga Enterprises (respondent No.1) placed supply orders to the appellant and pursuant to the said orders, the goods were being supplied to him and to discharge the liability, 2 respondent No.2 issued a cheque Ext.CW1/A dated 7.7.1997 of UCO Bank, Theog branch for a sum of `45,000/-. The cheque aforesaid was dishonoured, on the ground that the ‘payment stopped by the drawer’ as shown in Cheque returning memo Ext.CW2/B. The dishonouring of cheque was communicated to the complainant by his banker vide letter Ext.CW4/D dated 21.7.1997. Accordingly, he issued notice and as per endorsement of the postman, the respondent refused to accept the same, hence he filed a complaint within the statutory period. 3. Respondents were summoned. Notice of accusation was put, which was denied and claimed trial. To prove its case, complainant examined its witnesses and the respondent No.2 was examined under Section 313 of the Code of Criminal Procedure. No evidence in defence was adduced. At the end of trial, respondents were acquitted on the ground that the notice alleged to have been sent was not served on the respondent No.2, whereas, notice adduced in evidence (Ext.CW7/G) revealed that it was addressed to respondent No.1 through its proprietor/ partner c/o 3 Dr. S.N. Tuli, Dental Medical Practitioner, Theog, District Shimla, H.P. 4. Shri Balwant Kukreja, learned counsel for the appellant argued that the notice was sent in the name of respondent No.1 and there was no need to send a separate notice to respondent No.2 as respondent No.2 being the sole proprietor of respondent No.1. Since he refused to take notice, as such, learned trial Court was not justified in dismissing the complaint on this sole ground. 5. On the other hand, learned counsel for the respondents supported the impugned judgment of acquittal. 6. I have considered the rival contentions of the parties and have carefully gone through the evidence on record. The arguments advanced by the learned counsel for the appellant failed to convince me to return the findings in his favour. 7. In terms of Section 138 of the Act, a complaint petition alleging an offence thereto must demonstrate that the following ingredients exist that: (i) a cheque was issued; (ii) the same was presented; (iii) but, it was dishonoured; 4 (iv) a notice in terms of the said provision was served on the person sought to be made liable; and (v) despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice. 8. As per averments made in the complaint, it was respondent No.2 who had issued the cheque in question to the complainant to satisfy the debt liability. The cheque in question (Ext.CW1/A) is stated to have been signed by respondent No.2 in his individual capacity. There is no reference of respondent Firm nor it has been shown that this was to be debited from the Firm’s account. Notice was issued in the name of respondent-Firm without mentioning the name of respondent No.2 in any capacity which was returned with the endorsement of refusal (Ext.CW11/K). The payee was an holder of the cheque in due course i.e. complainant did not make the demand for payment of the said amount of money by giving a notice, in writing, to respondent No.2 within 30 days of receipt of information by him from the bank regarding return of the cheque as unpaid. Even the notice Ext.CW7/G does not make any reference of respondent No.2 in 5 any capacity as a sole proprietor or even as a partner of the respondent-Firm. The statutory notice was issued in the name of respondent-Firm, there was no occasion having been received by respondent No.2 when even his name was not reflected on the postal envelope alleged to have been sent to respondent No.1. This fact also stands admitted by the complainant in his statement before the Court that he never addressed the notice to respondent No.2. Therefore, by no stretch of imagination, it can be presumed that it was intended to be served on respondent No.2. Otherwise also in a proprietory concern, the proprietor is an effected person, who can either indict or be indicted for the alleged offence, therefore, it was incumbent upon the appellant to send the notice of demand to respondent No.2. 9. For the aforesaid reasons, in my considered opinion, the acquittal of the respondents cannot be interfered with. The appeal sans merit and is accordingly dismissed. 10. The respondent is discharged of his bail bonds, entered upon by him at any time, during the proceedings of the case. 11. Send down the records. August 1,2011. (Surinder Singh) (Pds) Judge. 6