There should not be any infirmity and illegality in execution of the power of attorney.

Per K. N. BASHA, J.

1. This appeal is preferred against the order of acquittal passed by the learned Judicial Magistrate, Tiruchengode in CC No. 31 of 1994 dated 11.5.2000 acquitting the accused for the offence under Section 138 of Negotiable Instruments Act.

2. Learned counsel appearing for the appellant contended that the learned trial Magistrate acquitted the accused without assigning any valid reasons. It is submitted that the appellant / complainant has complied with all the mandatory requirements contemplated under Section 138 of Negotiable Instruments Act and even the legally enforceable liability on the part of the accused has also been proved. But the learned Magistrate simply ignored all those materials in favour of the complainant, the appellant herein and acquitted the accused.

3. It is also contended that the learned Magistrate erred in holding that the power of Attorney executed in favour of P.W.1 by the propretrix is not a valid one. Learned counsel for the appellant further contended that the learned Magistrate has also committed error of law in placing reliance on the disputed cheque Ex.P.1 bearing No. 765539 dated 31.7.93 and held that the same is doubtful on the ground that the cheque bearing No. 765538 has been issued for payment towards the supplies made under Bill No. 20. It is also contended by the learned counsel for the appellant that the learned Magistrate has proceeded on the wrong basis that the proprietor has failed to examine himself on behalf of the complainant since the complaint had been filed by the Power of Attorney.

4. Per contraMr. K. Kuppusamy, learned counsel appearing for the first respondent ?A1 contended that there isno illegality or infirmity in the order of the acquittal and the learned Magistrate assigned valid reasons. It is also submitted that the learned Magistrate has rightly held that the complaint preferred by the Power of Attorney of Proprietrix concern is not maintainable. It is contended by the learned counsel that the complaint proprietary concern is not a partnership firm or a company and as such section 141 of the Negotiable Instruments Act is not applicable to the instant case. It is also submitted that the learned Magistrate has rightly placed reliance on the decision of this Court in 1998 (3) Crimes 337. Learned counsel also contended that even the said Power of Attorney executed in favour of the Manager of Proprietary concern, is not properly executed in accordance with law. It is also brought to the notice of this Court by the learned Counsel that the learned Magistrate has also rightly held that the respondent rebutted the presumption contemplated under Section 139 of the Negotiable Instruments Act by placing reliance on the questions raised in the cross examination of P.W.1. A perusal of the materials available on record clearly shows that Ex.P.1 cheque dated 31.7.93 bearing serial number 765539 was issued in respect of bill No. 13 which is the disputed cheque in this case and whereas towards the subsequent bill No.20, a cheque issued bearing No. 765538 dated 31.3.93 was already realised and such inconsistency raises doubt and probablises the defence version. It is also contended that the perusal of the Bill No. 13 shows the names of Senthil Kumar and Co. and also Pon Kaliamman Oil Mills and therefore it is doubtful whether the bill is in relation to Senthil Kumar and Co. or Pon Kaliamman Oil Mills and as such there is a serious doubt about the supply of materials to Senthil Kumar and Co on credit basis and therefore learned Magistrate rightly held that the complainant has not been proved and the cheque was not issued for legally enforceable hability and the accused has rebutted the presumption contemplated under Section 139 of Negotiable Instruments Act. It is further stated that even the perusal of Ex.P.1 the disputed cheque in this case clearly shows that there were variations in respect of signature and the contents of the cheque and as such the p