ASHOK KUMAR Vs. K GUNASEKARAN

JUDGEMENT

(1.) THIS Criminal Appeal is directed against the Judgment of Acquittal dated 10. 07. 1997 in C. C. No. 6 of 1997 on the file of Judicial Magistrate No. I, Erode.

(2.) THE Appellant / Complainant is the Proprietor of Shiv Agencies dealing with Textile Business situated at Easwaran Koil Street, Erode. The Respondent / Accused has been a customer of the Complainant. The Accused had borrowed a sum of Rs. 91,000/- from one Dilip Shivani on 14. 08. 1996 and for the above said liability, the Respondent / Accused had issued three post dated cheques one cheque dated 02. 10. 1996 for Rs. 35,000/-; the Second Cheque dated 03. 10. 1996 for Rs. 35,000/-; the Third Cheque dated 07. 10. 1996 for Rs. 21,000/ -. The said Dilip Shivani endorsed the cheques to Maya Shivani- Proprietor of Shiv Agencies. When the Cheques were presented for collection on 24. 10. 1996 through UCO Bank, Erode Branch, it were returned as Insufficiency of Funds on 24. 10. 1996. Notice was sent to the Respondent / Accused, which was returned party left. . . without any instruction. Thereafter a Rejoinder was sent on 07. 11. 1996 and the same was received by the Accused on 08. 11. 1996. The Accused had issued the Cheques without sufficient funds in his bank account and hence, committed the offence under Sec. 138 Negotiable Instruments Act, 1881 (hereinafter referred to as N. I. Act ). The Complainant, authorised by Maya Shivani under Ex. P. 1-Power of Attorney, has filed the Complaint against the Respondent / Accused.

(3.) IN the Trial Court, P. Ws. 1 and 2 were examined. Exs. P. 1 to P. 15 were marked. In consideration of the evidence, learned Trial Magistrate interalia found that the Appellant / Complainant has no proper locus standi to file the Complaint and that only Dilip Shivani ought to have filed the Complaint. The Trial Magistrate was of the view that in the absence of proof of passing of the consideration and when Dilip Shivani was not examined as Witness, the Complainant Ashok Kumar was found to be not entitled to file the Complaint. Learned Trial Magistrate also found that there is absolutely no evidence as to the passing of consideration for endorsing the Cheques.