IMPORTANT POINTS
• When there is an alteration in the cheque with regard to the name of the payee, the burden is upon the complainant to prove that such alteration was made by the accused himself or that it was made with the consent of the accused.
• When there was no examination-in-chief of a witness, no question of cross examination also arises. Section 138 of the Indian Evidence Act envisages that a witness would first be examined-in-chief and then subjected to cross examination. There is no meaning in tendering a witness for cross examination only. Tendering of a witness for cross examination, without conducting examination-in-chief, amounts to giving up of the witness.

R.NARAYANA PISHARADI, J.

1. The appellant is the complainant. Challenge in the appeal is directed against the judgment of the trial court acquitting the first respondent/accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act').

2. The case of the complainant is as follows: The accused borrowed an amount of Rs.65,000/-from her on 06.09.2003 on the promise that he would repay it after three months. After the expiry of the aforesaid period, the complainant demanded the amount from the accused. Then, the accused signed and delivered a cheque dated 06.12.2003 for Rs.70,000/-to her. The complainant presented the cheque in the bank. It was dishonoured for the reason that there was no sufficient amount in the account of the accused. On 18.12.2003, the complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused did not accept the notice though he received intimation regarding the notice from the postal authorities. The accused did not pay the amount.

3. The case was initially disposed of by the trial court by judgment dated 08.02.2005 by convicting and sentencing the accused for the offence punishable under Section 138 of the Act. The accused challenged the aforesaid judgment in appeal before the Court of Session. The appellate court set aside the order of conviction and sentence and remanded the case to the trial court to enable the complainant to adduce further evidence in the case.

4. During the trial of the case conducted initially, PW1 was examined and Exts.P1 to P6 were marked on the side of the complainant. The accused had got himself examined as DW1. After the remand of the case, PW2 was examined and Exts.P7 to P9 documents were marked on the side of the complainant. No further evidence was adduced by the accused.

5. The complaint was instituted by PW1, the power of attorney holder of the complainant. The accused had challenged the competency of PW1 to institute the complaint. The trial court found that PW1 had the authority to institute the complaint on behalf of the complainant. The accused had also alleged that Ext.P1 cheque is void on account of material alteration. The trial court accepted this plea and found that material alteration of Ext.P1 cheque was effected by the complainant. Consequently, the trial court found the accused not guilty of the offence punishable under Section 138 of the Act and acquitted him.

6. Heard learned counsel for the appellant and also the first respondent and perused the records.

7. Ext.P6 is the power of attorney executed by the complainant in favour of PW1. The first sentence in Ext.P6 reads as follows:

“I, Geemol Joseph W/O M.J Joseph, aged 40, Palathimkal House, Kodimatha, Kottayam South do here by constitute and appoint Losan Joseph, aged 33, Mannarath Hosue, Puthupally as my attorney in my name or in the name of Director, St.Mary's Communications, Kodimatha, Kottayam South to prosecute and conduct of the pending as well as the new suits/cases before the J.F.M.C Ettumanoor /Magistrate Courts Kottayam / C.J.M Court Kottayam/Munsiff's Courts, Ettumanoor/ Munsiff's Courts Kottayam/ Sub-Courts Kottayam/District Courts Kottayam and to do all other acts which are necessary or incidental for the proper conduct of the cases in which “St. Mary's Communications” as complainant/ petitioner/plaintiff/applicant or defendant/ counter petitioner.”

The question is whether PW1 had authority, on the basis of Ext.P6 power of attorney, to institute the complaint on behalf of the complainant.

8. On a close scrutiny of the recitals in Ext.P6 power of attorney, it can be found that the complainant had authorised PW1 to prosecute and conduct the cases before different courts in her name. The fact that she had also authorised PW1 to conduct cases in the name of the Director of St.Mary's Communications, Kodimatha does not in any way derogate the authority conferred upon PW1 by virtue of Ext.P6 t