JUDGMENT

Heard the learned counsel for the appellant. Notice sent to the respondent returned with an endorsement “No such addressee”. 2. This Criminal Appeal is preferred by the de facto complainant being aggrieved by the acquittal judgment of the lower appellate Court by reversing the judgment of the trial Court holding the respondent guilty of offence under Section 138 of Negotiable Instruments Act.

3. This is a case of dishonouring of the cheque issued by the respondent to the appellant for a sum of Rs.56,93,064/- to discharge the liability arise towards goods sold and delivered.

4. According to the appellant/complainant, the respondent used to purchase the yarn from the complainant on credit basis. It is a mutual open running account. The complainant supplied yarn under various invoices and as on 24.12.2009, the total balance payable by the respondent/accused was Rs.56,93,064/-. For more than 2 years, the accused did not clear the balance. Hence on 17.11.2011, notice was issued calling upon the accused to pay the balance amount as per the ledger account. The accused received the notice and in response to the notice gave subject cheque dated 28.01.2012 for a sum of Rs.56,93,064/- drawn on Oriental Bank of Commerce in favour of the complainant company. While so, the said cheque was presented for collection on 30.04.2012, but was bounced with an endorsement “Fund Insufficient”. Hence, statutory notice was caused to the accused/respondent, he refused to receive the notice. The notice returned with an endorsement “Refused”. On return of notice with the endorsement refused, cause of action to file complaint has arisen. Hence the complaint under Section 138 of Negotiable Instruments Act.

5. To prove the complaint, on behalf of the de facto complainant, three (3) witnesses were examined as PW.1 to PW3. PW.1 is a person authorized by the complainant company to represent them.

PW.2 and PW.3 are the officers attached to the Commercial Tax Department. Ex.P1 to Ex.P8 were marked through PW.1. Court exhibits Ex.C1 & Ex.C2 were marked through official witnesses.

6. The trial Court, taking note of the fact that the cheque drawn by the accused and the statement of account marked as Ex.P2 reflects the transaction and money due and payable to the complainant, held the accused guilty of offence under Section 138 of N.I.Act, sentenced him to undergo 2 years Simple Imprisonment and paying the cheque amount as compensation.

7. Aggrieved by the judgment of the trial Court, the accused/respondent preferred appeal before the learned I Additional District and Sessions Judge, Tiruppur in C.A.No.32 of 2014. The said appeal was allowed on 10.03.2015 on the ground that the complainant has failed to prove the subject cheque was issued to discharge the enforceable liability.

8. Having taken note of the fact that Ex.P2 [the ledger account], Court exhibits Ex.C1 [Sales Tax returns] and Ex.C2 [VAT documents] indicating for the goods sold to the accused, the complainant has paid tax at the relevant point of time, the lower appellate Court had concluded that these evidences are not sufficient to prove the debt. In the absence of invoices and proof of delivery of goods, the lower appellate Court has doubted the existence of debt. Further, the authorization given to PW.1 to represent the complainant company as doubted, since the letter of authorization Ex.P1 does not specifically authorised him to represent the company in the criminal complaint lodged against the respondent/accused.

9. Being aggrieved by the order of acquittal passed by the lower appellate Court, the present appeal is filed by the de facto complainant.

10. The learned counsel for the appellant/complainant would submit that Ex.P1 is the Board Resolution which reads as below:

“RESOLVED THAT the board of Directors of the company is hereby accords its approval for initiation of Criminal complaint against the cheque returned cases on behalf of the company.

FURTHER RESOLVED THAT Mr.B.Cyril Kanagaraj, S/o.K.Ben