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TMI Blog2020 (9) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... rawer and the complainant has complied the statutory requirements of issuance of notice within time. The Trial Court judgment deserves to be set aside and the accused is held to be guilty of the offence punishable under Section 138 of the N.I. Act. Appeal allowed. - CRIMINAL APPEAL No. 1324 OF 2010 - - - Dated:- 10-9-2020 - THE HON'BLE Dr. JUSTICE H. B. PRABHAKARA SASTRY For the Petitioner : Sri Ananda V. , Advocate for Sri Jagadeesh Mundargi , Associates For the Respondent : Sri U. S.Yogesh Kumar , Advocate JUDGMENT The present appellant was the complainant in the Court of learned XXII Addl.Chief Metropolitan Magistrate and XXIV Addl.Small Causes Judge, Bengaluru City, (hereinafter for brevity referred to as Rs. trial Court'), in C.C.No.64/2007, which case was filed against the present respondent arraigning him as accused, under Section 200 of Code of Criminal Procedure, 1973, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as Rs. N.I.Act'). 2. The summary of the case of the complainant in the trial Court is that the complainant being the dealer in SWR Systems, PVC Agri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has proved beyond reasonable doubt that the accused has committed an offence punishable under Section 138 of N.I.Act as alleged in the complaint? 2) Whether the judgment under appeal deserves an interference at the hands of this Court? 10. It is not in dispute that the complainant which is said to be a Private Limited Company is a dealer in SWR Systems, PVC Agri pipes, Sanitary wares etc., One Sri T.K.Umapathy, who is said to be its authorised signatory was examined as PW-1 for the complainant- Company. The said witness in his Examination-in-chief in the form of Affidavit evidence has reiterated the contentions taken up by him in his complaint. He has also given the details of the credit Bills under which the goods were said to have been supplied to the accused on different dates commencing from 02-11-2004 upto 21-03-2005 in total amounting to a sum of ₹ 3,75,224/-. Apart from stating that the cheques issued by the accused were dishonoured, the witness has produced those cheques at Exs.P-3 and P-4. He has further clarified that by oversight and typographical error in the complaint, he has mentioned that the cheques were dishonoured for the reason of insufficiency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany. PW-1 - Sri. T.K. Umapathy, in his evidence has stated that, he is representing the complainant Company for which he has been duly authorised by the Company to represent it in the present case. In support of his said statement, he has produced a Board resolution passed by the complainant Company and got it marked at Ex.P-1. Though this witness was cross-examined on the said point, except eliciting the details of the Directors of the Company, it was not specifically contended that PW-1 had no authority to lead evidence. On the other hand, the Board resolution which is at Ex.P-1 specifically shows that, the Company in its Board resolution dated 20-10-2006 has authorised inter alia PW-1 - Sri. T.K. Umapathy its Sales Manager to sign the papers pertaining to the case, execute affidavit to adduce evidence, etc. Thus, the said resolution since has authorised PW-1 to represent the Company and to give evidence in the matter, the contention of the learned counsel for the respondent/accused that PW-1 had no authority to represent the Company, is not acceptable. 13. PW-1 has given in his evidence a detailed account of the supplies made to the accused' establishment wherein the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts clearly demonstrate that the accused has issued two cheques to the complainant as per Exs.P-3 and P-4 and the same came to be dishonoured as per banker's endorsements at Exs.P-5 and P-6, subsequent to which, within the stipulated time, the complainant has issued statutory notice upon the accused demanding the payment of the cheques' amount, however, the accused did not respond to the same. 16. The learned Trial Court Judge though has observed all these aspects in his judgment, however, relying upon a decision in the case of Krishna Janardhan Bhat (supra) has held that, the existence of a legally recoverable debt is not a matter of presumption under Section 139 of the N.I. Act. Since the said finding in Krishna Janardhan Bhat's case (supra) was subsequently clarified by the Hon'ble Apex Court in Rangappa's case (supra), holding that the presumption mandated by Section 139 of the N.I. Act includes a presumption that, there exists a legally enforceable debt or liability, however, such presumption is rebuttable in nature. The point of law is clear that, once the complainant establishes the issuance of cheque by the accused to him, Section 139 of the N.I. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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