The burden of proof shifts to the accused once the issuance and dishonour of the cheque are established, and the need to prove the 'existing debt or liability' under the Promissory Note is essential for establishing liability under Sec.138 N.I.Act.

This Appeal is directed against the Judgment of Acquittal (dated 14.02.1997) by the VII Metropolitan Magistrate, Chennai, acquitting the Respondent / Accused for the offence under Sec.138 N.I.Act in C.C.No.2803 of 1995.

2. The Complainant is M/s. Rajendra Finance, said to be represented by its Power of Attorney Nandagopal. Case of Complainant is that the Accused had taken loan of Rs.15,000/- on 08.01.1990 by way of a Cheque bearing No.784871, for the discharge of the same, the Accused, his Brothers and Sister had executed a Joint Promissory Note in favour of the Complainant and promised to repay the same with interest. Despite repeated requests and demands, no amount was discharged. After five years, the Accused issued Cheque No. 509019 dated 20.02.1995 for an amount of Rs.24,926/- drawn on “Punjab National Bank Ltd”, Rajaji Road, Madras in favour of the Complainant and that the Accused had also made oral promise to the Complainant that necessary arrangements would be made to honour the Cheque. On such representation of the Accused, the Complainant had presented the Cheque for collection through his Banker – Indian Overseas Bank on 05.04.1995 for encashment and the same was returned unpaid due to “Insufficient funds” in the bank account of the Accused. The Complainant had issued Ex.P.7-Notice on 12.04.1995 calling upon the Accused to discharge the entire Cheque amount of Rs.24,926/-. Ex.P.7-Notice was acknowledged by the Accused under Ex.P.8-Acknowledgement. But, no amount was forthcoming. Alleging that the Accused had knowingly issued the Cheque for want of sufficient funds in his bank account and that the Accused had committed the offence under Sec.138 Negotiable Instruments Act (hereinafter referred to as “N.I.Act”), the Complainant has filed the Complaint.

3. To substantiate the averments in the Complaint and to establish the guilt of the Accused, before the Trial Court, P.Ws.1-Bank Manager of Punjab National Bank – Banker of the Accused, P.W.2-Lakshmi Narayanan-Power of Attorney of the Complainant Finance Firm have been examined. Exs.P.1 to P.8 were marked. The Accused was questioned under Section 313 Crl.P.C about the incriminating circumstances and evidence. Denying the issuance of the Cheque, the Accused has stated that a false case has been foisted against him. In consideration of the evidence adduced by the Complainant, the Trial Court acquitted the Respondent / Accused interalia on the grounds that:

(i) Nandagopal, who filed the Complaint onbehalf of the Complainant M/s.Rajendra Finance has not been properly authorised;

(ii) P.W.2 is made to represent under Ex.P.4-Power of Attorney at the later stage and that the Complainant has not been properly represented.

(iii) Promissory Note is of the year 1990 and that the Cheque was issued in 1995, that there is no existing debt or liability in lieu of which the Cheque could have been issued.

On the above reasonings, finding that the guilt of the Accused has not been proved beyond reasonable doubt, learned Magistrate has acquitted the Accused.

4. Aggrieved over the Acquittal, the Complainant has preferred this Appeal. Onbehalf of the Complainant, it is contended that once the issuance of Cheque and dishonour of Cheque is proved, the burden shifts to the Accused to disprove the same. The finding of the Trial Court that the Complainant – M/s.Rajendra Finance has not properly authorised Mr.Nandagopal is assailed contending that the non-filing of Power of Attorney at the time of filing of the Complaint has been cured later and the Accused has not taken any objection for the same at the pre-trial stage.

5. Respondent / Accused represented by the Counsel Mr.K.M.Subramanian. Heard.

6. From the submissions of the Appellant / Complainant, Judgment of the Trial Court and perusal of other materials on record, the point that arises for consideration is whether the Order of Acquittal suffers from any serious infirmity warranting interference.

7. The Complainant M/s.Rajendra Finan