IMPORTANT POINT
Dishonour of cheque—Power of attorney holder can file compliant on behalf of complainant but for further proceedings examination of complainant would be must.

U. Durga Prasad Rao, J.—Aggrieved by the judgment dated 09.04.2007 in C.C.No.231 of 2006 passed by the learned Special Judicial Magistrate of First Class, Mobile (PCR), Adilabad acquitting the accused for the offence under Section 138 of Negotiable Instruments Act, 1881 (for short N.I Act), the complainant preferred the instant Criminal Appeal.

2. On factual side, the case of complainant is that he was doing cement business under the name and style Meghraj Omprakash Cement Dealer, Adilabad and one Damodar who is none other than his nephew, is his authorised GPA holder. The accused L.Sunitha used to purchase cement on credit from the said Damodar as proprietor of Uma Maheshwari Trading Company. She purchased cement worth Rs.1,26,070/- from the complainant on credit from 02.02.2002 to 05.04.2002, but failed to pay the amount and hence on demand issued 9 cheques for Rs.99,420/-. The further case of complainant is that when the cheques were presented in Andhra Bank, Adilabad for encashment, they were returned bounced for insufficient funds in the account of accused in Union Bank of India, Adilabad. The same was intimated to the accused through legal notice on 11.12.2004 and demanded her to pay the amount within 15 days which was served on 17.12.2004, but she neither gave reply nor paid. Hence, the complainant filed the complaint under Section 142 of Negotiable Instruments Act (for short N.I Act).

3. During trial, PWs.1 to 3 were examined and Exs.P1 to P43 were marked on behalf of complainant. DWs.1 and 2 were examined.

4. The trial Court on appreciation of oral and documentary evidence on record held that complainant failed to fulfil the conditions required under Section 138 of N.I Act and accordingly the trial Court acquitted the accused. Hence, the appeal by complainant.

5. The parties in this appeal are referred as they stood before the Tribunal.

6. Heard arguments of Sri A.Hari Prasad Reddy, learned counsel for appellant/complainant and Sri Vinod Kumar Deshpande, learned counsel for respondent No.1/accused and learned Public Prosecutor for R2/State.

7. (a) Impugning the judgment, learned counsel for appellant/complainant firstly argued that trial Court grossly erred in placing burden of proof on complainant and holding that he failed to prove there existed legally enforceable debt. The trial Court committed another error in disbelieving the bills and ledger bills produced by the complainant. Learned counsel argued, when the complainant could establish that Exs.P2 to P10cheques were issued by the accused, the presumption under Section 139 of NI Act comes into play not only to the effect that the cheques were issued by the accused for discharge of legally enforceable debt but also the existence of legally enforceable debt. Therefore, no burden casts on the complainant to further prove the existence of legally enforceable debt. Inspite of the same, the complainant produced bills and ledger accounts maintained by him in due course of business transactions which would show that accused used to purchase cement from complainant on credit basis. He argued, the trial Court was not correct in rejecting the aforesaid documentary evidence on the ground that the complainant has not produced the indents, invoices and the signatures of accused on credit bills in support of his accounts and hence the accounts produced by him are only self-serving documents. Learned counsel vehemently argued that it is the case of the complainant that he used to supply cement on telephonic requests of the accused and not on formal indents. Learned counsel further argued that trial Court erred in holding that since some of the intermediate cheques were encashed by the complainant in the year 2002-2003, Exs.P2 to P10 cheques should also be deemed to be issued by the accused prior to 2002 only and that the complainant at his convenience filled up the contents on those blank signed cheques issued by the accused and pressed them into service. He argued that if re