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2008(1) Bankmann 607 (Kar.)
KARNATAKA HIGH COURT
R.B. Naik, J.
Om Shakthi SC/ST and Minority Credit Co-operative Society Ltd. —Appellant
versus
M. Venkatesh —Respondent
Criminal Appeal No. 1065 of 2005
Decided on 5.10.2007
Counsel for the Parties:
For the Appellant:C.N. Krishna Reddy, Advocate.
For the Respondent:V. Lakshmikant Rao, Advocate.
IMPORTANT POINT
Complaint for an offence punishable under Section 138 of the NI Act can be presented by a person other than payee or holder in due course and their authorized agents, power of attorney holder is not maintainable..
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 142—Dishonour of cheque issued towards repayment of loan in favour of complainant appellant society—Order of acquittal on findings that presentation of complaint by complainant society through its President without authorization of society was not maintainable—Appeal—Question whether complaint for offence under Section 138 of NI Act filed by Firm, Society Company by President, Secretary, Director, Employee without authorization or power of attorney was maintainable? No.
Held: In the instant case, the complainant is a co-operative Society. The President has examined himself as PW1. Besides the same, the legal notice has been issued for and on behalf of the Society by its Secretary, the prayer in the complaint is for payment of the amount covered under cheque with cost and interest. All these clearly indicate that the complaint is not maintainable in law and the trial Court was justified in rejecting the complaint for the reason as stated above. In addition to the reasons assigned by the trial Court in acquitting the accused and for the reasons stated above, I hold that the trial Court was justified in acquitting the accused of the allegation made against him. (Para 10)
Result: Appeal dismissed.
R.B. Naik, J.—This is an appeal filed by the original complainant appellant challenging the order of acquittal passed by the XXII Addl. CMM, Bangalore and XXIV Addl. Small Causes Judge, Bangalore City dated 6.4.2005 in CC No. 36103/2002 acquitting the respondent accused of the offence punishable under Section 138 of the N.I. Act.
2. It is the case or 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. P2 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 Cooperative Society through its banker KSC Apex Bank Ltd., Magadi Road, Bangalore on 18.6.2002. Ex. P3 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 realization, the complainant Society through its Secretary got issued a legal notice dated 2.7.2002 Ex. P5 to the respondent accused, as provided under Section 138 (2)(b) of the NI Act, demanding the amount covered under the cheque dated 12.2.2002. The said notice was sent through Registered Post Acknowledgment Due. The acknowledgment for having served the notice to the respondent accused is marked as Ex. P8 the same is signed by respondent accused on 4.7.2002. In addition to sending the notice under Registered Post Acknowledgment 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. P6. In addition to producing the said documents pertaining to the transaction and filing of the complaint under Section 200 Cr. P.C. for offence punishable under Section 138 of the NI Act, the complainant Bank also produced Ex. P9 and P10 to establish the transaction of having disbursed a sum of Rs. 25,000 to the respondent accused. Ex. P9 is a voucher dated 5.2.2001 indicating payment of loan to the respondent accused. Ex. P10 is the letter of undertaking of the respondent accused.
3. As the respondent accused did not respond to the notice dated 2.7.2002, nor replied the same, nor made the payment as demanded in the said notice. The appellant complainant presented a complaint as per Ex. P1, 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 PW1 and got marked Ex. P1 to P10. The defence got marked Ex. D1 to D6. Ex. D1 is a receipt issued by the complainant Society in favour of the respondent accused for having paid a sum of Rs. 2,500. Ex. D2 is the pass-book reflecting payment of Rs. 1,452 and Rs. 1,449 by the respondent accused to the complainant Society. Ex. D3 to D6 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 was authorised to present the complaint, the trial Court acquitted the respondent accused of the charges levelled against him and accor
