A complaint for an offence punishable under Section 138 of the NI Act can only be presented by the payee or holder in due course, and their authorised agents or power of attorney holder.

This is an appeal filed by the original complainant-appellant challenging the order of acquittal passed by the XXII Additional City Municipal Magistrate, Bangalore and XXIV Additional Small Causes Judge, Bangalore City, dated 6-4-2005 in CC No. 36103 of 2002 acquitting the respondent-accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

2. It is the case of the appellant-complainant that it is a Co-operative Society and it had disbursed a loan of Rs. 25,000/- to the respondent accused on 5-2-2001. The respondent-accused failed to discharge the loan and pay the installments due as and when they fell due. After due persuasion, the respondent-accused issued a cheque Ex. P. 2 in favour of the complainant-Co-operative Society for a sum of Rs. 25,000/- dated 12-2-2002 towards the discharge of liability. The cheque so issued was presented by the complainant-Co-operative Society through its banker KSC Apex Bank Limited, Magadi Road, Bangalore on 18-6-2002. Ex. P.3 is the endorsement issued by the Bank returning the cheque with an endorsement "funds insufficient". The said endorsement is dated 19-6-2002. On the return of the cheque without realisation, the complainant-Society through its Secretary got issued a legal notice dated 2-7-2002 Ex. P. 5 to the respondent-accused, as provided under Section 138(b) of the NI Act, demanding the amount covered under the cheque dated 12-2-2002. The said notice was sent through Registered Post Acknowledgement Due. The acknowledgement for having served the notice to the respondent-accused is marked as Ex. P. 8 the same is signed by. respondent/accused 'on 4-7-2002. In addition to sending the notice under Registered Post Acknowledgement Due, the copy of the notice was also sent under Certificate of Posting on 2-7-2002 and the postal endorsement issued is marked as Ex. P. 6. In addition to producing the said documents pertaining to the transaction and filing of the complaint under Section 200 of the Criminal Procedure Code, 1973 for offence punishable under Section 138 of the NI Act, the complainant-Bank also produced Exs. P. 9 and P. 10 to establish the transaction of having disbursed a sum of Rs. 25,000/- to the respondent-accused. Ex. P. 9 is a voucher dated 5-2-2001 indicating payment of loan to the respondent-accused, Ex. P. 10 is the letter of undertaking of the respondent-accused.

3. As the respondent-accused did not respond to the notice dated 2-72002, nor replied the same, nor made the payment as demanded in the said notice, the appellant-complainant presented a complaint as per Ex. P. 1, on 30-7-2002 with a prayer that the respondent-accused should be convicted and to pass an order for payment of the amount with cost and interest. On presentation of the complaint the Trial Court took cognizance, recorded the sworn statement of the complainant-appellant, directed issue of process to the accused. In response to the process, the respondent-accused, put in appearance in the case. The complainant on its behalf examined the President of the complainant-Society as P.W. 1 and got marked Exs. P. 1 to P. 10. The defence got marked Exs. D. 1 to D. 6. Ex. D. 1 is a receipt issued by the complainant-society in favour of the respondent-accused for having paid a sum of Rs. 2,500/-. Ex. D. 2 is the passbook reflecting payment of Rs. 1,452/- and Rs. 1,449/- by the respondent-accused to the complainant-society, Exs. D. 3 to D. 6 are the receipts issued by the complainant-society in favour of the accused for having received a sum of Rs. 1,452/-, Rs. 1,435/-, Rs. 1,449/- and Rs. 3,414/- respectively. The Trial Court on appreciation of the material on record, has arrived at a conclusion that the presentation of the complaint by the complainant-society through its President without authorisation of the Society or without any Power of Attorney executed by the Society in favour of the President and as no document was produced before the Court to establish that the President