Himachal Pradesh High Court
Reserved On: 7.4.2025 vs Ram Singh And Another on 2 July, 2025
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 531 of 2010
.
Reserved on: 7.4.2025
Date of Decision: 02.07.2025.
M/s Himalya Plastic Ltd. ...Appellant
Versus
Ram Singh and another
Coram
r to ...Respondents
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. O.C. Sharma, Advocate.
For Respondent No.1: Mr. Jitender Pal, Advocate.
For Respondent No.2 : Mr. Jitender Sharma, Additional
Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
dated 28.5.2010, passed by learned Judicial Magistrate First
Class, Solan, District Solan, H.P. (learned Trial Court), vide
which the respondent (accused before learned Trial Court) was
acquitted of the commission of an offence punishable under
Section 138 of Negotiable Instruments Act, 1881 (NI Act). (Parties
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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shall hereinafter be referred to in the same manner as they were
arrayed before the learned Trial Court for convenience.)
.
2. Briefly stated, the facts giving rise to the present
appeal are that the complainant filed a complaint before the
learned Trial Court against the accused for the commission of an
offence punishable under Section 138 of the NI Act. It was
asserted that the complainant is a Company duly incorporated
under the Indian Companies Act. Madan Sharma is the
Managing Director of the complainant Company. He executed a
General Power of Attorney in favour of Sita Ram Verma to file
the present complaint. The complainant is involved in the
business of manufacturing and selling HDPE pipes, fittings,
sprinklers, drip irrigation systems, PIB (silicon-coated), and
HDPE Telecom Duct. The accused purchased various items from
the complainant on credit. He issued a cheque of ₹6,56,202/-
drawn on Bharatpur Anchalik Gramin Bank, Sodawas Branch.
The complainant presented the cheque before its Bank, but it
was dishonoured with an endorsement ‘account closed’. A
notice was served upon the accused asking him to pay the
amount; however, the accused failed to pay any money despite
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receipt of the valid notice of demand. Hence, the complaint was
filed to take action as per the law.
.
3. The learned Trial Court recorded the preliminary
evidence and found sufficient reasons to summon the accused.
When the accused appeared before the Court, notice of
accusation was put to him, to which he pleaded not guilty and
claimed to be tried.
4. The complainant examined Sita Ram (CW1), Ashok
Jain (CW2), and M.L. Marwari (CW3) to prove its case.
5. The accused, in his statement recorded under Section
313 of Cr.P.C., stated that he had business dealings with the
complainant. He had paid the entire amount to the complainant.
He had issued a blank cheque as security, and he had no liability
to pay the amount. He was falsely implicated by misusing the
blank cheque issued as a security. No notice was served upon
him. He stated that he wanted to lead defence evidence, but did
not lead any evidence.
6. Learned Trial Court held that the complaint was filed
in the name of the Company, which was represented by Sh. Sita
Ram Verma. He produced an authority letter showing Madan
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Sharma as Managing Director. The memorandum of articles of
association did not mention the name of Madan Sharma. The
.
authorisation in favour of Sita Ram Verma was not proper. The
complainant failed to produce any documentary evidence to
show that the amount was legally recoverable, which
corroborated the plea of the accused that he had issued a blank
cheque as security. The accused also proved a letter written to
the complainant asking for the return of a blank cheque. All
these circumstances made it doubtful that the cheque was issued
in discharge of legal liability. Therefore, the accused was
acquitted of the commission of an offence punishable under
Section 138 of the NI Act, and the complaint was dismissed.
7. Being aggrieved from the judgment passed by the
learned Trial Court, the complainant filed the present appeal,
asserting that the learned Trial Court has drawn the conclusion
based on conjectures and surmises. The matter was appreciated
in a slipshod and perfunctory manner. Sita Ram Verma was
authorised to file the complaint by Madan Sharma, who was
appointed as Director of the Company, and this aspect was
ignored by the learned Trial Court. The accused did not dispute
the issuance of the cheque, and there is a presumption that it
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was issued in discharge of legal liability. Issuing a blank, signed
cheque conferred sufficient authority on the complainant to fill
.
in the amount in the cheque. The accused admitted the business
dealings with the complainant, and the conclusion that there
was no consideration is contrary to the record. Therefore, it was
prayed that the present appeal be allowed and the judgment
passed by the learned Trial Court be set aside.
8. I have heard Mr. O.C. Sharma, learned counsel for the
appellant/complainant, Mr. Jitender Pal, learned counsel for
respondent No.1, and Mr. Jitender K. Sharma, learned Additional
Advocate General, for respondent No.2-State.
9. Mr. O.C. Sharma, learned counsel for the
appellant/complainant, submitted that the learned Trial Court
erred in holding that Sita Ram Verma was not authorised to file
the complaint. The complaint cannot be dismissed for want of
authorisation. The issuance of the cheque was not disputed.
Therefore, a presumption would arise when the cheque was
issued in discharge of the legal liability. The accused did not
rebut this presumption by leading any satisfactory evidence.
Learned Trial Court erred in shifting the burden to prove the
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consideration to the complainant. The complainant is not
supposed to prove the existence of the legally enforceable debt
.
because it is a matter of presumption. Therefore, he prayed that
the present appeal be allowed and the judgment passed by the
learned Trial Court be set aside. He relied upon the following
judgments in support of his submission: –
(i) M/s Naresh Potteries Vs. M/s Aarti Industries and
another 2025: INSC:1;
(ii) M/s Mohan Meakin Limited Vs. M/s Spirit and
Beverages L-1 2018(2) Shim. LC 944,
(iii) Rajesh Jain Vs. Ajay Singh (2023) 10 SCC 148,
(iv) Kalamani Tex and Another Vs. P. Balasubramanian
(2021) 5 SCC 283;
(v) Rahul Sudhakar Anantwar Vs. Shivkumar Kanhiyalal
Shrivastav (2019) 10 SCC 203;
(vi) Bir Singh Vs. Mukesh Kumar (2019) 4 SCC 197;
(vii) Kishan Rao Vs. Shankargouda (2018) 7 SCC 165;
(viii) Sampelly Satyanarayana Rao Vs. Indian Renewable
Energy Development Agency Limited (2016) 10 SCC 458;
(ix) Rangappa Vs. Sri Mohan (2010) SCC 441;
(x) Manoj Sharma Vs. Anil Aggarwal 2012(3) Criminal
Court Cases 853 (Delhi); and::: Downloaded on – 02/07/2025 21:23:06 :::CIS
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(xi) Ashok Debbarma @ Achak Debbarma Vs. State of
Tripura 2014(2) Criminal Court Cases 246 (SC).
.
10. Mr. Jitender Pal, learned counsel for
respondent/complainant, submitted that the learned Trial Court
had taken a reasonable view based on the material placed before
it, and this Court should not interfere with the reasonable view
of the learned Trial Court even if another view is possible. This
Court has already held in a complaint filed by the present
complainant that Sita Ram Verma was not an authorised person
to file the complaint, which finding is binding upon the
complainant. Therefore, it is not permissible for the
complainant to say in the present proceedings that Sita Ram
Verma is a competent person to file the complaint on behalf of
the Company. Hence, he prayed that the present appeal be
dismissed. He relied upon the following judgments in support of
his submission: –
(i) Director, Maruti Feeds & Farms Private Limited,
Dharwad Vs. Basanna Pattekar 2007 (4) CCC 385
(Karnataka);
2011(2) CCC 690 SC;
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(iii) Ashok Leyland Finance Limited Vs. State of Rajasthan &
Anr. 2012(4) CCC 807 (Rajasthan);
.
(iv)( Lakshmi Srinivas Savings & Chit Funds Syndicate Pvt.
Ltd. Vs. S. Bhojarajan 2007(2) CCC 803 (Madras);
(v) Meeta Rai Vs. Gulshan Mahajan 1999(2) CCC 553
(P&HS);
(vi) V.U. Pathrose Vs. V.K. Jeevalan 2017(2) CCC 832
(Kerala);
(vii) B. Krishna Reddy Vs. Sayed Hafeez (Died) per L.R. Smt.
Naseema Begum & Anr. 2019(3) Apex Court Judgments
732 (SC);
(viii) Ghanshyamdas Lalchand Chandak Vs. Sheikh Hamid
Sheikh Gulab & Anr. 2018(4) CCC 619 (Bombay);
(ix) Hans Kumar Jain Vs. Renu Gandotra @ Poonam 2016(1)
Criminal Court Cases 364 (Delhi);
(x) M/s Bajaj Finance Limited Vs. Pooja Narayan Khetan
2021(3) CCC 724 (Gujarat);
(xi) Susamma Raju Vs. K.M. Wilson 2018(2) CCC 530
(Kerala);
(xii) M.S. Narayana Menon @ Mani Vs. State of Kerala &
Anr., Criminal Appeal No. 1012 of 1999, decided on
4.7.2006;
(xiii) M/s Shreya Agro Services Pvt. Ltd. Vs. Chandrakumar
S.B. 2006(4) CCC 459 (Karanatka);
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(xiv) Vishnudas Vs. Vijaya Mahantesh, Criminal Appeal No.
1697 of 2006, decided on 6.12.2006;
.
(xv) Krishna Janaradhan Bhat Vs. Dattartraya G. Hegde,
Criminal Appeal No. 518 of 2006, decided on 11.1.2008;
(xvi) K. Basheer Vs. C.K. Usman Koya 2021(3) CCC 438
(Kerala (DB);
(xvii) Abdulkhader K.P. Vs. C. Pankajakshan Nambiar and ors.
Crl.A. 1504 of 2008, decided on 7.2.2020;
(xviii) Sachin Food Processor Vs. Sanjay T. Pathak (Kulkarni),
2016(3) CCC 654 (Bombay);
(xix) Santhi Vs. Mary Sherly 2011(3) CCC 619 (Kerala); and
(xx) M/s Himalayan Plastics Ltd. Vs. Tej Singh and another,
Criminal Appeal No. 263 of 2010, decided 1.10.2021.
11. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
12. The present appeal has been filed against a judgment
of acquittal. It was laid down by the Hon’ble Supreme Court in
Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176:
(2025) 5 SCC 433 that the Court can interfere with a judgment of
acquittal if it is patently perverse, is based on misreading of
evidence, omission to consider the material evidence and no
reasonable person would have recorded the acquittal based on
the evidence led before the learned Trial Court. It was observed:
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“11. Recently, in the case of Babu Sahebagouda
Rudragoudar v. State of Karnataka 2024 SCC OnLine SC
4035, a Bench of this Court to which one of us was a
Member (B.R. Gavai, J.) had an occasion to consider the.
legal position with regard to the scope of interference in
an appeal against acquittal. It was observed thus:
“38. First of all, we would like to reiterate the
principles laid down by this Court governing the scope
of interference by the High Court in an appeal filed by
the State for challenging the acquittal of the accused
recorded by the trial court.
39. This Court in Rajesh Prasad v. State of Bihar [Rajesh
Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC
(Cri) 31] encapsulated the legal position covering thefield after considering various earlier judgments and
held as below : (SCC pp. 482-83, para 29)“29. After referring to a catena of judgments, this
Court culled out the following general principles
regarding the powers of the appellate court whiledealing with an appeal against an order of acquittal
in the following words: (Chandrappa
case [Chandrappa v. State of Karnataka, (2007) 4 SCC415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42)
’42. From the above decisions, in our consideredview, the following general principles regarding
the powers of the appellate court while dealingwith an appeal against an order of acquittal
emerge:
(1) An appellate court has full power to
review, reappreciate, and reconsider the
evidence upon which the order of acquittal is
founded.
(2) The Criminal Procedure Code, 1973 puts
no limitation, restriction or condition on the
exercise of such power and an appellate
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law.
(3) Various expressions, such as “substantial
.
and compelling reasons”, “good and
sufficient grounds”, “very strong
circumstances”, “distorted conclusions”,
“glaring mistakes”, etc., are not intended to
curtail the extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of
“flourishes of language” to emphasise the
reluctance of an appellate court to interfere
with an acquittal than to curtail the power of
the court to review the evidence and to come
to its own conclusion.
(4) An appellate court, however, must bear in
mind that in case of acquittal, there is a
double presumption in favour of the
accused. Firstly, the presumption of
innocence is available to him under the
fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly,
the accused, having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed, and strengthened by
the trial court.
(5) If two reasonable conclusions are possible
on the basis of the evidence on record, the
appellate court should not disturb the finding
of acquittal recorded by the trial court.”
40. Further, in H.D. Sundara v. State of Karnataka [H.D.
Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3
SCC (Cri) 748] this Court summarised the principles
governing the exercise of appellate jurisdiction while
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dealing with an appeal against acquittal under Section
378CrPC as follows: (SCC p. 584, para 8)
“8. … 8.1. The acquittal of the accused further
.
strengthens the presumption of innocence.
8.2. The appellate court, while hearing an appeal
against acquittal, is entitled to reappreciate the oral
and documentary evidence;
8.3. The appellate court, while deciding an appeal
against acquittal, after reappreciating the evidence,
is required to consider whether the view taken by
the trial court is a possible view which could have
been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the
appellate court cannot overturn the order of
acquittal on the ground that another view was also
possible; and
8.5. The appellate court can interfere with the order
of acquittal only if it comes to a finding that the
only conclusion which can be recorded on the basis
of the evidence on record was that the guilt of the
accused was proved beyond a reasonable doubt and
no other conclusion was possible.”
41. Thus, it is beyond the pale of doubt that the scope
of interference by an appellate court for reversing the
judgment of acquittal recorded by the trial court in
favour of the accused has to be exercised within the
four corners of the following principles:
41.1. That the judgment of acquittal suffers from
patent perversity;
41.2. That the same is based on a misreading/omission
to consider material evidence on record; and
41.3. That no two reasonable views are possible and
only the view consistent with the guilt of the accused
is possible from the evidence available on record.”
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12. It could thus be seen that it is a settled legal position
that the interference with the finding of acquittal
recorded by the learned trial judge would be warranted by
the High Court only if the judgment of acquittal suffers
.
from patent perversity; that the same is based on a
misreading/omission to consider material evidence on
record; and that no two reasonable views are possible and
only the view consistent with the guilt of the accused is
possible from the evidence available on record.”
13. A similar view was taken in Bhupatbhai Bachubhai
Chavda (supra), wherein it was observed:-
“6. It is true that while deciding an appeal against
acquittal, the Appellate Court has to reappreciate theevidence. After re-appreciating the evidence, the first
question that needs to be answered by the Appellate Court
is whether the view taken by the Trial Court was a
plausible view that could have been taken based on theevidence on record. Perusal of the impugned judgment of
the High Court shows that this question has not been
adverted to. The Appellate Court can interfere with the
order of acquittal only if it is satisfied after reappreciatingthe evidence that the only possible conclusion was that
the guilt of the accused had been established beyond a
reasonable doubt. The Appellate Court cannot overturn
the order of acquittal only on the ground that anotherview is possible. In other words, the judgment of acquittal
must be found to be perverse. Unless the Appellate Court
records such a finding, no interference can be made with
the order of acquittal. The High Court has ignored the
well-settled principle that an order of acquittal further
strengthens the presumption of innocence of the accused.
After having perused the judgment, we find that the High
Court has not addressed itself to the main question.”
14. The present appeal has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
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15. The complainant had filed a complaint previously
through Sita Ram Verma. It was held by this Court in Himalayan
.
Plastic Ltd. v. Jas Ram, 2021 SCC OnLine HP 7442. Sita Ram Verma
was not authorized to file the complaint. It was observed:
“19. After analyzing the evidence on record, it is clear that
Sita Ram Verma was not authorized as per the resolution
of the Board of Directors’ of the Company nor he was aPrincipal Officer of the Company and his title to maintain
the present complaint was to be considered vis-a-vis his
capacity to depose in the Court of law.”
16. A similar finding was recorded in Himalayan Plastics
Ltd. v. Tej Singh, 2021 SCC OnLine HP 7441, wherein it was
observed:
“15. After analyzing the evidence on record, it is clear that
Sita Ram Verma was not authorized as per the resolution
of the Board of Directors of the Company nor he was aPrincipal Officer of the Company and his title to maintain
the present complaint was to be considered vis-a-vis hiscapacity to depose in the Court of law.”
17. These findings were recorded in the complaints
instituted by the present complainant, and once it has been held
that Sita Ram was not properly authorised to file a complaint on
behalf of the Company, it is difficult to see how the complainant
can take a plea contrary in the present proceedings.
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18. Memorandum of Article of Association of Himalayan
Plastics confers the power upon the Directors to institute,
.
conduct, defend, or compound any legal proceeding by or
against the Company or its officers or officials concerning the
affairs of the Company. Article 93(23) authorizes the Directors
to appoint any person or persons to be the attorney of the
Company for such purposes and for such period and subject to
such conditions as the Board of Directors may from time to time
prescribe. Article 93(24) provides for the delegation of the
power, authority, and discretion vested in the Directors to any
Person, Firm, or Company.
19. It is apparent from Article 93 that power has been
conferred upon the Directors and not upon a Director. The term
Directors has been defined in Article 2 as Directors for the time
being of the Company or, as the case may be, the Directors
assembled at a Board. It is undisputed that the Power of
Attorney was given by Madan Sharma, the Managing Director,
and not by the Directors assembled at a Board. The list of
Directors (Ex.CW1/B) also mentions B.N. Verma and Rajesh
Sharma. Thus, the power under Article 93 was to be exercised by
all three Directors and not by a single Director. It was laid down
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in the Director, Maruti Feeds and Farms (P) Ltd. v. Basanna
Pattekar, (2007) 140 Comp Cas 17 that where the resolution
.
passed by the Board of Directors was not brought on record, the
person does not have any authority to represent the Company. It
was observed:
3. I have considered the contentions of learned Counsel
with reference to the material on record. It is not disputedthat the complainant is a company registered under the
Companies Act, 1956 and PW1 apart from his own self-
serving statement that he is the Director who is
authorised to depose on behalf of the company, has not
produced any documentary evidence to show that he is
the Director and he has been authorised by the company
to depose on behalf of the company. The resolution of the
company has not been produced, and he has pleaded his
ignorance in the cross-examination about the resolution
passed by the Board of Directors. Since the company is a
juristic person, any person on behalf of the company has
to be authorised by the company under the Articles of
Association or by a separate resolution to depose on
behalf of the company and therefore, finding of the Trial
Court is justified and it is unnecessary to go into the other
reasons recorded by the Trial Court in dismissing the
complaint and acquitting the accused.
20. A similar view was taken in Milind Shripad
Chandurkar (supra), and it was held that before a person can
represent a juristic person, he must show his connection to such
juristic entity. It was observed:
“In the instant case, it is evident that the firm, namely,
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2025:HHC:20831-DBappellant cannot claim to be the payee of the cheque, nor
can he be the holder in due course, unless he establishes
that the cheques had been issued to him or in his favour
or that he is the sole proprietor of the concern and being.
so, he could also be the payee himself and thus, entitled
to make the complaint.”
21. A heavy reliance was placed on behalf of the
complainant upon Naresh Potteries (supra), however, it was held
in the said judgment that the complaint on behalf of a Company
can be filed by an employee or a non-employee authorized and
empowered to represent the Company either by a resolution or
by a Power of Attorney. In the present case, there is no
resolution or power of attorney by the Board of Directors, as was
held in the earlier cases as well. Therefore, the cited judgment
does not apply to the present case.
22. In M/s Mohan Meakin Limited (supra), the Court held
that the Board of Directors had executed a Power of Attorney in
favour of the Secretary of the Company. No such resolution has
been filed in the present case, and this judgment does not assist
the complainant.
23. Therefore, the learned Trial Court had rightly held
that the complaint was not filed by a payee or holder in due
course, and it was not maintainable.
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24. Since the complaint was not filed by a properly
authorised person, therefore, it is not necessary to go into the
.
other aspects.
25. No other point was urged.
26. In view of the above, the present appeal fails, and
the same is dismissed.
27.
A copy of the judgment and the record of the learned
Trial Court be sent back forthwith.
(Rakesh Kainthla)
Judge
2nd July, 2025
(Chander)
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