THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL Nos.1584 and 1585 OF 2004 ORDER: Both appeals are directed against the acquittal of the accused in C.C.Nos.1133 of 2000 and 1194 of 2000 by the Judicial First Class Magistrate, Rajam on 12.11.2003. The appellant herein is the complainant; he has filed the complaints against the respondent/accused for the offences punishable under Sections 138 and 142 Negotiable Instruments Act alleging that the complainant company is a manufacturing concern of Aqua feed and other products for prawn culture. The accused was a dealer in Aqua feed and other products and he has purchased Aqua feed under various consignments and owe an amount of Rs.10,59,971.33 Ps standing in the account of complainant as on 31.01.2000. The accused issued cheques for Rs.1,00,000/- and Rs.3,00,000/- in favour of complainant dated 03.08.2000 and 12.08.2000 respectively. The complainant has presented the said cheques in the State Bank of India, Rajam for collection and the same were bounced stating that there are insufficient funds. Thereafter, the complainant has issued registered notices dated 18.08.2000 and 06.09.2000 calling upon the accused for the payment of the amount due under the dishonoured cheques within 15 days, the accused received the said notice and failed to make the payment within 15 days. Hence, the complaint. The accused has denied the offence under Section 138 Negotiable Instruments Act when he was examined under Section 251 Cr.P.C. by the lower Court. In order to establish the averments in the complaint, the complainant examined himself as P.W.1 and got marked Exs.P.1 to P.5. On behalf of the accused, D.W.1 was examined and got marked Exs.D.1 to D.9. The learned Magistrate by taking into consideration of the said oral and documentary evidence found that the complainant failed to establish that the said cheques were issued in discharge of legally enforceable debt by the accused and also failed to establish that P.W.1 is competent person to file the complaint, thereby acquitted the accused. Aggrieved by the said acquittal in both the cases, the complainant has filed the present appeal. Since the allegations made in the complaints and defence taken by the accused are one and the same in both the appeals, they are being disposed of by this common Order. Now, the point that arises for consideration is: Whether the complainant could able to establish the offence under Section 138 Negotiable Instruments Act against the accused beyond reasonable doubt? P O I N T: According to the complaint, the complainant company is a manufacturing concern of Aqua feed and other products for Prawn culture and the accused is a dealer in Aqua feed and other products and he purchased Aqua feed under various consignments and owe an amount of Rs.10,59,971.33 Ps., and in discharge of the part payment of the amount, he has issued cheques on 03.08.2000 and 12.08.2000. The accused has taken a plea that P.W.1 has no right to file the complaint as there are 4 directors in the complainant company and he has not filed any authorization issued by the company to file the present complaints. He further pleaded that he is a dealer of the complainant company for Amalapuram area and at the time of giving dealership, the complainant company has obtained signatures on blank papers and stamp papers and also obtained 6 blank cheques through their technician Rajesh, as security for payment of the due amount. Since the accused has not disputed about his signatures on the cheques, under Section 139 of Negotiable Instruments Act it has to be presumed that the cheques were issued for repayment of the legally enforceable debt, but the said presumption is a rebuttable presumption and the burden is on the accused to rebut the said presumption. To rebut the said presumption and to establish that the said cheques were issued by him as a security at the time of giving dealership by the complainant company, the accused examined D.W.1, who worked as technician in the complainant company. According to D.W.1, he worked as technician in Complainant Company for Amalapuram area since 1995. Lalitha traders is the dealer in Amalapuram area and the accused is the proprietor of the said firm. He has obtained blank cheques with signatures of the accused as security as per the instructions of their marketing manager. Exs.P.1 to P.3 are the cheques, Exs.D.1 to D.8 are vouchers and Ex.D.9 is the receipt. Exs.D.1 to D.9 are issued by the Aqua Limited, Rajam in his favour through Lalitha Traders. In the cross- examination he admitted that he has not filed the appointment Order and all the bills, which are marked as Exs.D.1 to D.9 are filed by him through the Lalitha Traders. T.A. bills are also drawn through the Lalitha Traders and all the bills drawn by him were credited into the account of the accused. He denied that he received the amounts from Lalitha Traders as he is the man of Lalitha Traders. He also denied that the complainant company has not appointed him as technician for Amalapuram Area. Therefore, from the cross-examination of D.W.1, the contention of the appellant is that D.W.1 is not their technician and he is the employee of the accused firm. From Exs.D.1 to D.8, it is evident that the complainant company has issued credit advice in favour of the accused firm for payment of the traveling expenses of D.W.1 during the year 1996-1997. Ex.D.9 is a receipt issued by the complainant firm for the payment of the salary to D.W.1 by the accused firm. From the above documents, it is evident that D.W.1 worked as technician in the complainant company. According to D.W.1, he obtained 3 cheques as security at the time of appointing the accused as a dealer for the complainant company. On behalf of the complainant, P.W.1 was examined. According to him he is director of the said company and he has narrated the same facts as mentioned in the complaint, in his chief-examination. In the cross-examination he admitted that they appointed technicians in various places, but they have not appointed technicians in Amalapuram area. He also admitted that he has not filed any invoice to show the supply of prawn feed to the accused. He has not filed any acknowledgement or receipt of product by the accused firm. He denied that at the time of giving the dealership, they obtained signed cheques from the accused. When the accused could able to establish, through the evidence of D.W.1, that the said cheques were issued as security at the time of giving dealership to the accused firm, the burden shifts on the complainant to establish that as per the account maintained by them the accused is due an amount of Rs.10,59,971-33 ps for the Aqua feed purchased from their company. As admitted by P.W.1, he has not produced any such documents to establish the supply of prawn feed to the accused company and the amount due from the accused company except his oral evidence. Therefore, the accused could able to rebut the presumption available under Section 139 Negotiable Instruments Act. The accused pleaded that P.W.1 is not a competent person to file the complaint as there are other directors in the company. P.W.1 has not filed any authorization issued by the complainant company to file the complaint. He also pleaded that the company was closed in the year 1999, as such the complaint filed in the year 2000 is not maintainable. P.W.1 in the cross-examination admitted that there are 4 directors in complainant’s company and he is one of the directors. One J.Saiprabhakar is the chairman of the complainant company at the time of filing of the complainant. He stated that he has already filed the authorization given by the Board of Directors to him. He denied that the complainant company was closed after 1998. Thus, from the admissions made by P.W.1, it is evident that the complainant company is having 4 directors and J.Saiprabhakar is the chairman of the said company. According to him, authorization was given to him by the Board of Directors to file the complaint, but no such authorization was filed before the lower Court. Therefore, P.W.1 is not competent to file the complaint. Therefore, the lower Court found that the complainant has failed to establish that P.W.1 is competent to file the complaint and the accused has not issued the cheques to the complainant in respect of legally enforceable debt. Thus, the said finding does not warrant any interference by this Court in the appeal. The complainant failed to establish the offence under Section 138 Negotiable Instruments Act against the accused. In the result, the criminal appeal Nos.1584 and 1585 of 2004 are dismissed. _______________________ P.DURGA PRASAD, J 18th November, 2011 Ksp