IMPORTANT POINTS
The payee or the holder in due course received the cheque on their behalf. But without a power of attorney or authorization or any other evidence authorising the payee or the holder in due course, he cannot accept the cheque on behalf of others and prosecute a complaint. Similarly, to succeed in prosecution, the other persons should adduce admissible oral or documentary evidence showing authorization.

JUDGMENT :

The above appeal is filed by the complainant in C.C. No.386 of 2003 on the file of the Chief Judicial Magistrate Court, Kollam.

2. The complaint was filed against the 2nd respondent herein for prosecuting him under Section 138 of the Negotiable Instruments Act, 1881. [Hereinafter, the parties are mentioned according to their rank in the trial court].

3. The case of the complainant, in brief, is as follows:

The accused is a contractor attached to the Milma Dairy, Kollam. The complainant and 12 others were appointed by the accused for carrying out the work in the Milma Dairy. According to the complainant, the accused received an amount of Rs.20,000/-each from the complainant and the other employees on various occasions. According to the complainant, the amount of Rs.20,000/-received by the accused from him was on 25.11.1996. The complainant's case is that, the above amount was received by the accused as security for the job to be carried out by the complainant. It was agreed to repay the amount within one year of the completion of the work. It is the case of the complainant that, the accused also executed separate agreements in favour of the complainant and other employees to that effect. While so, the accused violated the agreement and failed to give the job to the complainant and the 12 other employees. According to the complainant, the accused was absconding. While so, on 12.6.1997, the complainant and the 12 others met the accused and demanded the amount paid by them. According to the complainant, the accused drew a cheque for Rs.2,60,000/-through Central Bank of India in favour of the complainant with others' consent towards the amount due to the complainant and 12 others. When the cheque was presented for encashment through Indian Overseas Bank, Kollam, the cheque was returned for the reason 'funds insufficient'. Further case of the complainant is that, the accused refused to pay the amount even after the statutory notice issued to him. Hence, the complaint was filed.

4. On taking the sworn statement of the complainant, the learned Magistrate took cognizance of the offence under Section 138 of the Negotiable Instruments Act and issued summons to the accused.

5. After that, four witnesses were examined on the side of the complainant. PW2 is the complainant himself. Exhibits P1 to P9 are the documents marked on the side of the complainant.

6. After going through the evidence and documents, the trial court found that, the accused is not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and he was acquitted under Section 255(1) of the Code of Criminal Procedure (Cr.P.C). Aggrieved by the acquittal order, this Criminal Appeal is filed by the complainant.

7. Heard Sri. R.Suraj Kumar, the learned counsel appearing for the appellant and the learned counsel for the 2nd respondent. Heard the learned Public Prosecutor for the 1st respondent.

8. The appellant's counsel submitted that, the trial court has not considered the evidence adduced by the complainant properly. According to the appellant, he proved the offence under Section 138 of the Negotiable Instruments Act. He contended that, the trial court had not considered the fact that, there is a presumption in favour of the complainant under Section 139 and 118 of the Negotiable Instruments Act.

9. The learned counsel for the 2nd respondent contended that, the trial court considered all the evidence and correctly found that, the complainant has not proved the case.

10. The point for consideration, in this case, is whether the accused committed the offence under Section 138 of the Negotiable Instruments Act.

11. The admitted prosecution case is that, only an amount of Rs.20,000/- is due to the complainant. According to the complainant, he and 12 others approached the accused, demanding the amount due to them. The complainant's further case is that, the accused issued a cheque in favour of the complainant Sunil K.J. for an amount of Rs.2,60,000/-. The