IMPORTANT POINTS
1. Complaint under Section 138. Negotiable instruments Act can be filed by power of attorney holder of payee.
2. It is obligatory on court under Section 139 of Negotiable Instruments Act to raise presumption in every case where factual presumption has been established.

M. Karpagavinayagam, J. - Y. Sreelatha @ Roja was convicted by the trial Court for the offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 5,000/-, in default to undergo S.I. for two months. Challenging the said conviction and sentence the accused filed an appeal before the Principal Sessions Court. Chennai and the same was admitted on 3-8-1999.

2. Mukanchand Bothra, the complainant aggrieved over the inadequacy of the sentence filed a revision before this Court in Crl. RC. No. 736 of 1999 and the same was admitted and notice was ordered on 23-7-1999.

3. On the application filed by the parties before this Court the appeal against conviction pending before the Principal Sessions Court, Chennai was directed to be posted before this Court for being heard along with Crl. RC. No. 736 of 1999. Accordingly, the said appeal papers were received by the Registry of this Court and the same was renumbered as C.A. No. 261 of 2000. Since both these matters are taken together for final, disposal, they are being disposed of through this common judgment.

4. The facts of the case in short are these:

(a) Y. Sreelatha @ Roja, the accused, borrowed a loan of Rs. 5 lakhs from Mukanchand Bothta, the complainant, and executed a promissory note on 5-7-1996. In order to discharge the said loan, towards a part liability the accused issued two cheques each for Rs. 1 lakh bearing the dates 30-5-1997 and 31-5-1997. On 2-6-1997, the complainant presented these cheques for encashment and the same were returned as "not arranged for" by intimation dated 4-6-1997. Thereafter, the complainant issued a statutory notice on 10-61997 calling upon the accused to discharge the entire cheque amount of Rs. 2 lakhs. Despite receipt of the said statutory notice on 12-61997 the accused neither paid the amount nor sent any reply. Hence, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act through his Power of Attorney Bhoopathy.

(b) (b) On the basis of the sworn statement taken from the said Bhoopathy on 17-3-1998, the case was taken on file and summons was issued to the accused. After appearance the trial was proceeded with.

(c) (c) During the course of trial, the complainant examined himself as P.W.1 and the Bank Officer, who returned the cheque as "not arranged for", was examined as P.W.2 through whom Exs. P-2 to P-9 were marked. On the side of defence. D.Ws.1 to 5 were examined and Exs. D-2 to D-4 were marked.

(d) (d) The trial Court ultimately concluded that the prosecution proved its case and found the accused guilty for the offence under Section 138 of the Negotiable Instruments Act and sentenced her to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 5.000/-.

5. The points urged by the learned counsel for the appellant/accused could be summarised as follows: -

(i) The complainant instead of filing the complaint directly has filed the complaint through Power of Attorney. The Power of Attorney holder is not competent to speak about the transaction that took place between the payee and the drawer of the cheques. Further, the document for the Power of Attorney was not filed.

(ii) The name of the payee has not been correctly written in the cheques in question. The complainant's name is Mukanchand Bothra. But, the cheques were issued in the name of Mukalchand Bothra. Therefore, complainant is not the payee of the cheques in question and as such, he can not institute the complaint.

(iii) The complainant did not prove that there was a legally enforceable debt by producing the receipts or vouchers to show that the loan was lent to the accused. Though the complainant claimed himself as a financier. D.W.3 Deputy Tahsildar stated that the complainant does not have the licence to carry on the money lending business. Further, he has not filed the