Company prosecutions under the NI Act cannot fail solely for non-examination of the original authorised representative; retrial ordered.
In a section 138 NI Act complaint by a company, substitution of the authorised representative was held permissible, and the prosecution could not be rejected merely because the original deponent was not later cross-examined or because no fresh affidavit was filed by the substituted representative. The court noted that supporting documents showing the transaction, dishonour, notice and service remained usable, and that if further examination was needed, the trial court should have used its procedural powers to summon the witness rather than terminate the complaint on a technical objection. The acquittal was therefore set aside and the matter remanded for a denovo trial on merits, with liberty to substitute the representative and adduce evidence afresh.
Issues: (i) Whether an acquittal in a prosecution under section 138 of the Negotiable Instruments Act, 1881 could rest solely on the non-examination of the complainant company's initial authorised representative and the absence of a fresh affidavit by the substituted representative. (ii) Whether the impugned acquittal required interference and the matter had to be sent back for a denovo trial.
Issue (i): Whether an acquittal in a prosecution under section 138 of the Negotiable Instruments Act, 1881 could rest solely on the non-examination of the complainant company's initial authorised representative and the absence of a fresh affidavit by the substituted representative.
Analysis: A company may prosecute through different human representatives, and substitution of the authorised representative is permissible. The initial affidavit and supporting documents do not become unusable merely because the original deponent is not later produced for cross-examination, particularly where the complaint is supported by documentary material showing the transaction, dishonour, notice, and service. If the trial court felt that examination of the earlier representative was necessary, the proper course was to use its power to summon the witness rather than dispose of the complaint on that technical ground. The statutory presumption under section 139 remains relevant once the foundational facts are shown, and the accused must be afforded an opportunity to rebut it on the merits.
Conclusion: The acquittal could not lawfully be founded only on the non-examination of the initial authorised representative, and that reasoning was unsustainable.
Issue (ii): Whether the impugned acquittal required interference and the matter had to be sent back for a denovo trial.
Analysis: Because the trial court declined to examine the other issues and rejected the complaint on a narrow procedural premise, the decision did not reflect a proper adjudication on the available evidence. The appropriate course was to set aside the acquittal, erase the evidence already recorded, and restore the matter for a fresh trial from the plea stage, with liberty to the complainant to seek substitution if needed and with opportunity to both sides to adduce and test evidence.
Conclusion: The impugned judgment was set aside and the matter was remanded for denovo trial.
Final Conclusion: The complainant's appeal succeeded to the extent of obtaining reversal of the acquittal, and the complaint was restored for fresh adjudication on merits without being influenced by the earlier observations.
Ratio Decidendi: In a complaint under section 138 of the Negotiable Instruments Act, 1881, a prosecution by a company cannot be rejected solely because the original authorised representative who filed the affidavit is not later cross-examined, where substitution of representatives is permissible and the court can resort to its procedural powers to secure the witness for a decision on merits.
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