TMI Blog2007 (10) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... society and it had disbursed a loan of ₹ 25,000/- to the respondent accused on 5.2.2001. The respondent accused failed to discharge the loan and pay the installments due as and when they fell due. After due persuasion, the respondent - accused issued a cheque Ex.P-2 in favour of the complainant Co-operative society for a sum of ₹ 25,000/- dated 12.2.2002 towards the discharge of liability. The cheque so issued was presented by the complainant - Co-operative Society through its banker KSC Apex Bank Ltd., Magadi road, Bangalore on 18.6.2002. Ex.P-3 is the endorsement issued by the Bank returning the cheque with an endorsement funds insufficient . The said endorsement in dated 19.6.2002. On the return or the cheque without realis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount with cost and interest. On presentation of the complaint the Trial Court took cognizance, recorded the sworn statement of the complainant - appellant, directed issue of process to the accused. In response to the process, the respondent - accused, put in appearance in the case. The complainant on its behalf examined the President of the Complainant Society as PW-1 and got marked Ex.P-1 to P-10. The defence got marked EX.D-1 to D-6. Ex.D-1 is a receipt issued by the complainant Society in favour of the respondent - accused for having paid a sum of ₹ 2,500/-. Ex.D-2 is the passbook reflecting payment of ₹ 1,452/- and ₹ 1,449/- by the respondent - accused to the complainant Society, Ex.D-3 to D-6 are the receipts i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course. - Yes. - (d) Whether the Trial Court is justified in acquitting the respondent - accused for the offence punishable under Section 138 of the NI Act.? - Yes. - ANSWERS: POINT (a): In the negative in view of Section 142 of the NI Act. POINT (b): Specific authorisation authorising the complainant or a power of attorney authorising to file complaint required. POINT (c): Only in the event of death of payee or holder in due course, by their legal representatives and in case of Firm, Company, Society, in the event of new incumbent taking charge but only after obtaining due authorisation or power of attorney. POINT (d): In the affirmative for the reasons stated. 6. On re-appreciation of the material on record, it is qui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tendered evidence as PW-1. He has also got marked Ex.D-1 to D-6 to establish certain payments made to the complainant - appellant. These receipts go to establish payments made by accused but the complainant has not given deductions to the payments made by the respondent - accused and a legal notice was issued without giving such deductions under Section 138(b) of the NI Act to the respondent - accused calling upon him to make payment of entire amount of ₹ 25,000/-. The said notice as stated above has been issued by the society through its secretary and the notice also does not indicate whether the Secretary had been authorised toy the Society to cause legal notice issued to the respondent - accused. Then thereafter, the complainant - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding anything contained in Cr.PC. 1973, no Court shall take cognizance of any offence punishable under Section 138 of the NI Act, except upon a complaint in writing made by the payee or as the case may be, the holder in due course of the cheque. The reading of the said provision negates the argument of the learned Counsel for the appellant - complainant. The learned Counsel for the appellant - complainant also contended that the Society is registered under the Societies Registration Act and the President being an authorised officer of the Co-operative Society, can present a complaint on behalf of the society. Since the provisions of the Co-operative societies Act, clearly indicate that the President can exercise powers on behalf of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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