1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 1715 / 2009 [Samta Sales Corporation vs. Shri Roshan Agarwal Pro: Jagdishprasad & Sons) ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. Rohan Chhabra Adv. for applicant Mr A N Ansari Adv for Respondent .......... CORAM : A.P.BHANGALE, J. DATED : JANUARY 20, 2010. Heard. 2. By means of this application, the applicant is praying for grant of leave to appeal under section 378 (4) of the Cr.P.C. seeking to challenge the judgment and order of acquittal dated 10.2.2009 passed by learned JMFC Special Court u/s 138 of the Negotiable Instruments Act, Nagpur in Summary Criminal Case No. 8535/2006. The notice was issued to respondent in respect of this application as well as appeal. The delay in filing of the application was condoned before this application was taken up for hearing. 3. Learned Advocate for the applicant prays for leave to appeal on the ground that the trial Court did not appreciate the ingredients of offence punishable under section 138 of the N I Act namely, that the cheque in question was issued in discharge of legally enforceable debt and the said cheque remained dishonoured for non- 2 payment despite demand made by notice in writing, which was served upon accused. 4. Learned counsel for the respondent /accused stoutly opposed grant of leave on the ground that the trial Court was misled by the power of alleged attorney holder Rupendra Gulabchand Jain who had admittedly signed the complaint as also verified it as in the name as Manoharlal Jain. Had be stated the truth before the trial Court that he was not Manoharlal Jain, the original complainant, trial Court would not have taken cognizance of the complaint in view of Section 142 of the N I Act. Section 142 reads thus: 142: Cognizance of offences – Notwithstanding anything contained in the Code of Criminal Procedure, 1972 ( 2 of 1974) (a) no court shall take cognizance of any offence punishable under sec. 138 except upon a complaint,in writing made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under Cl.(c) of the proviso to Sec. 138: (Provided that the cognizance of a complaint may be taken by the Court after the prescribed period. If the compliant satisfies the Court that he had sufficient cause for not making a complaint within such period.) © no Court inferior to that of Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any 3 offence punishable under sec. 138.” 5. In the ruling in Shankar Finance & Investment vs. State of AP and others, reported in (2008 ) 3 SCC (Cri) 558 after considering the requirement of Section 142 (a) for taking cognizance of offence punishable u/s 138 held that the attorney holder is the agent of the grantor and where he is authorised by the grantor to initiate legal proceedings, he does so as his agent and the initiation is by grantor represented by his attorney holder and not by the attorney holder in his personal capacity. Therefore where the payee is a proprietary concern, the complaint can be filed: (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the “payee”; (ii) the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by sole proprietor. But attorney holder cannot file the complaint in his own name as if he was the complainant.. He can initiate criminal proceedings on behalf of his principal.” 6. Looking into Section 142 of the NI Act as also ruling cited supra, the power of attorney holder ought not to have misled the trial Court by signing the complaint as if he was a complainant without disclosing the fact that he is power of attorney holder acting on behalf of the complainant. One who indulges into suppression of truth 4 by misleading the Court on facts, he is not entitled to any relief as he can on account of fraudulent suppression of facts, be thrown out of the Court at any stage of the litigation. For the afore-stated reasons, leave is refused. Application is rejected. JUDGE sahare