GAUTAMCHAND Vs. NISHIKANT SON OF NARAYAN SHASTRI

JUDGEMENT

(1.) THIS Appeal is directed against an order of discharge in favour of the respondent-accused namely; Nishikant Narayan Shastri of offence punishable under Section 138 of the Negotiable Instruments Act. The impugned judgment and order was passed by learned Judicial Magistrate First Class and Special Court under Section 138 of the Negotiable Instruments Act, Nagpur on 22/05/2007 in Misc. Criminal Case No. 2942 of 2005.

(2.) HEARD submissions at the bar.

(3.) MY attention is also invited to the fact that complaint was instituted by Ajit Manikchand Kotecha, Manager of the Kochar Finance, Nagpur mentioning that the complainant is a Manager and the complaint is being filed through authorized person Shri. A. M. Kotecha, who is holding a Special Power of Attorney from Proprietor of the Company namely; Shri. Gautam Inderchand Kochar. The accusations were that a cheque bearing No. 020841 for Rs. 60,000/-, drawn on The Nagpur Mahila Nagri Sahakari Bank Limited, Dhaiampeth Branch, Nagpur on 05/07/1994 was presented for collection but it was returned dishonoured with an endorsement "refer to drawer" under bank intimation dated 21/12/1994. Thereafter, it is the case of the complainant that he was given an assurance regarding payment by the accused who executed Hundi on 27/10/1994 in favour of the complainant but the accused had failed to make the payment of complainant's Finance Company. Therefore, legal notice dated 01/01/1995 under Sec tion 138 of the Negotiable Instruments Act was served to the accused on 10/01/ 1995. The accused also gave reply to the notice and denied his liability. The question raised on behalf of the accused is; as to whether the complaint was filed by an authorized person in accordance with law and is maintainable under Sec tion 138 of the Negotiable Instruments Act. While on behalf of the complainant question is raised as to whether a fresh cause of action will arise since the accused executed the 'Hundi' assuring payment based upon Hundi with reference to cheque issued earlier. The complainant had prayed for an action against accused under Section 138 of the Negotiable Instruments Act read with Section 420 of the Indian Penal Code. The impugned judgment and order appears silent in respect of deciding the above questions. Appeal 497.2007