A SATHAYANARAYAN Vs. K SELVAM

JUDGEMENT

(1.) WHETHER a counsel is disentitled to appear for the complainant on account of the counsel being a creditor to the complainant and whether the Power of Attorney holder is incompetent to file the complaint and give evidence in Section 138 proceedings of the N. I. Act and whether the cheques issued being dishonoured on account of the accounts being transferred to another branch of the same bank, attracts the offence under Section 138 of the N. I. Act, are the questions that have cropped up during in the course of hearing of all these appeals, calling for an answer.

(2.) THE respondent in all these appeals being one and the same person and the cheques issued by him to each of the complainants having been dishonoured and all the cheques being issued in respect of a Memorandum of agreement reached between the complainant vishnu Bharath and one Bhakthavatsalam and the respondent; the trial Court after having the evidence of the power of attorney holder being recorded in all the cases and the evidence of the respondent also being one and the same, excepting the differences in the cheque amounts, the trial Court thought it fit to dispose of all the complaints by a common judgment and hence this Court is also left with no other option than to dispose of all these appeals by this common judgment with the consent of both the parties.

(3.) THE facts which are common to all the complaints filed before the trial Court under section 138 of the Negotiable Instruments Act ('n. I. Act' for short) are to the effect that, under a Memorandum of Agreement entered into between one Bhakthavatsalam and manjunath being the first party and the respondent herein K. Salvam and one Ven-kateshmurthy as the second party and the complainant Vishnu Bharath and his wife anuradha Bharath being the party of the third part, it was agreed, (under the said Memorandum of Understanding dated 19-2-2001) that the second party of which the respondent herein is one of them has undertaken to pay the liability of the party of the first part and in this regard, the liability which the respondent k. Selvam owed to the 3rd party being Rs. 78,50,000/-, the respondent Selvam issued several cheques to the complainants party and all the said cheques Were returned and thereafter the respondent Selvam issued the cheques which are the subject-matter of all these appeals to the respective complainants. In respect of the complainant Vishnu Bharath (Cri. A. No. 352/07), the respondent issued six cheques, out of which four were for Rs. 10 lakhs and one was for Rs. 3 lakhs and last one of Rs. 5 lakhs as per Exs. P1 to P4, P5 and P6 respectively totaling to Rs. 48 lakhs and all these cheques on being presented were returned by the concerned bank to the said complainant with the endorsement "account closed and the account transferred to Shanthi nagar branch" in respect of the first four cheques and in respect of the cheques as per exs. P5 and P6, the endorsement issued was "insufficient funds". The cheques issued in favour of the complainant Chetan Bharath (Crl. A. No. 353/07) were three in number and they were for Rs. 10 lakhs in respect of two cheques and Rs. 2 lakhs for one cheque and all three were returned with the endorsement "account closed" and these cheques are at Exs. P1 to P3 respectively. As far as the cheques issued to the complainant Smt. Sindhu Bharath (Crl. A. No. 354/07) are concerned, they were three in number, each for rs. 10 lakhs and all these cheques which have been produced at Exs. P1 to P3 respectively were returned with the endorsement "insufficient funds". As far as the cheques issued by the very same respondent to Smt. Anuradha bharath (Crl. A. No. 355/07) is concerned, they were two in number for Rs. 10 lakhs and rs. 1,50,000/- each as per Exs. P3 and P4 respectively and they were returned with the endorsement 'insufficient funds'. Finally, in respect of the cheques issued to A. Sathyanarayana (Crl. A. No. 356/07) which were two in number for Rs. 10 lakhs each, the said cheques were also returned with the endorsement "account closed" and they were produced at Exs. P1 and P2. Thus, it is the case of the complainants that in respect of all the cheques issued which is the subject-matter of the Crl. A. Nos. 352/07,353/07 and 355/ 07, the said cheques were returned with the endorsement "account closed and account transferred to Shanthi Nagar branch" and in respect of the other cheques which the subject-matter of Crl. A. No. 354/07 and Crl. A. No. 355/07, they were returned with the endorsement "insufficient funds". Therefore the complainants/appellants filed the complaints under Section 138 of the N. I. Act before the trial Court and after the evidence of the complainant, Vishnu Bharath who also happens to be the Power of Attorney Holder for the other complainants, being recorded and after considering the evidence placed by the respondent who were examined for DW-1 and another witness one Venkatesh Murthy as DW-2 and taking into consideration the documents filed and the rulings cited by the respondent's side, the learned trial Judge dismissed all the complaints by acquitting the respondent herein and against the said orders of acquittal in each of the cases filed by the complainants, the present appeals have been preferred.