IMPORTANT POINT
A power of attorney holder can present a cheque on behalf of the payee, and the absence of a date on the cheque does not invalidate it if issued for a loan.

JUDGMENT :

This appeal is at the instance of the complainant in C.C. No. 894 of 2005 on the file of Judicial First Class Magistrate Court, Kayamkulam, challenging acquittal of the accused under Section 138 of the Negotiable Instruments Act (for short, the NI Act), vide judgment dated 12.12.2006.

2. The case of the complainant is that, the accused borrowed Rs.2 lakh from him, and issued Ext.P1 cheque dated 10.10.2005, assuring that it would be honoured on presentation before the bank. But the cheque was returned dishonoured for the reason ‘insufficient funds’. Though lawyer notice was sent intimating dishonour of the cheque and demanding the cheque amount, the amount was not repaid. Since the complainant was working abroad, his brother filed the complaint on the strength of his power of attorney.

3. On taking cognizance, and on appearance of the accused before the trial court, particulars of offence were read over and explained, to which he pleaded not guilty, and claimed to be tried. Thereupon, PWs.1 and 2 were examined, and Exts.P1 to P8 were marked from the side of the complainant to prove his case.

4. On closure of the complainant’s evidence, accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record, and stated that a blank cheque given by him to the complainant for business purposes, was misused for filing this complaint. No defence evidence was adduced.

5. On analysing the facts and evidence, and on hearing the rival contentions from either side, the trial court acquitted the accused finding that the power of attorney holder had no authority to present the cheque before the bank or to issue lawyer notice under Section 138(b) of the NI Act. Aggrieved by the acquittal of the accused, this appeal has been preferred by the power of attorney holder of the complainant.

6. Heard learned counsel for the appellant/complainant and learned State Brief for the 2nd respondent/accused.

7. Learned counsel for the appellant would contend that, there was clear admission from the part of the 2nd respondent/accused, in Ext.P7 reply notice that, he had borrowed Rs.2 lakh from the complainant on 05.04.2004, and he had admitted issuance of Ext.P1 cheque to the complainant. Even then the trial court acquitted the accused. Since the complainant was abroad, Ext.P1 cheque was handed over by the accused to PW1 - the brother of the complainant, and he presented that cheque before bank, to be encashed through the account of the complainant. The complainant himself arranged a lawyer for sending notice to the accused, on dishonour of the cheque. So learned counsel for the appellant asserted that the trial court went wrong in acquitting the accused, finding that the power of attorney holder had no authority to present the cheque, or to send the lawyer notice. Hence the impugned judgment is liable to be set aside.

8. Ext.P7 reply notice sent by the accused clearly says that, he had borrowed Rs.2 lakh from the complainant on 05.04.2004, on a specific understanding that the said amount will be repaid on or before 05.04.2006. As a security for repayment of that amount, he had issued Ext.P1 cheque to the complainant without putting the date. It was further averred in that reply, that an agreement also was executed, agreeing the terms and conditions of repayment of the amount. But no such collateral documents were produced from the part of the accused, showing any such conditions for repayment.

9. The accused is admitting receipt of Rs.2 lakh from the complainant on 05.04.2004, and also issuance of Ext.P1 cheque in order to secure repayment of that amount. So, if at all it was issued without putting any date, when the repayment was defaulted, the complainant had every authority to fill up the date, and to present it before the bank. Otherwise, that cheque is nothing but a worthless paper. When amount is borrowed giving a blank cheque as