JUDGMENT 1. Aggrieved by the order of acquittal passed in favour of the respondent, the complainant in C.C.No.5665/2016 on the file of XXVI Additional Chief Metropolitan Magistrate, Bengaluru has preferred the above appeal. 2. The appellant was the complainant and the respondent was the accused before the trial Court. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court. 3. The complainant is a Bank constituted under the Banking Companies Act, 1927 having its Head office at Peenya II stage, Bengaluru. The complainant has its branches at Peenya and Chikkaballapura. The accused and his family members were the members of complainant Co-operative Bank. 4. The complainant presented the cheque Ex.P2 dtd. 14/1/2016 drawn on Citibank, NA Branch on the account of the accused for sum of Rs.48,68,400.00. The cheque was presented through the account of the complainant in HDFC Bank Ltd. Richmond Road, Bengaluru. The cheque was returned with banker's memo as per Ex.P3 dtd. 19/1/2016 with endorsement 'account closed'. 5. The complainant got issued statutory notice as per Ex.P4 dtd. 27/1/2016 to the accused claiming that the cheque was issued towards discharge of legal liability and that was dishonoured. Under the notice, the complainant called upon the accused to pay the cheque amount within 15 days or to face the prosecution for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 ('the Act' for short). 6. The accused replied to the said notice as per Ex.P6 dtd. 6/2/2016 denying the transaction, liability or issuance of the cheque. Therefore the complainant filed the complaint as per Ex.P7 before the trial Court seeking prosecution of the accused for the offence punishable under Sec. 138 of the Act. 7. On taking cognizance, the trial Court registered the said case in C.C.No.5665/2016, summoned the accused and conducted the trial. After such trial, on hearing the parties, the trial Court by the impugned order acquitted the accused on the following grounds: (i) Issuance of the cheque and the loan transaction were proved; (ii) That loan was a term loan payable from 2014 till 2024. The loan had not become overdue. (iii) The cheque was issued as security for repayment of loan; (iv) When the cheque was presented the loan had not become due for payment. Therefore it cannot be said that there was legally enforceable debt as on that date. The loan had not become overdue. (iii) The cheque was issued as security for repayment of loan; (iv) When the cheque was presented the loan had not become due for payment. Therefore it cannot be said that there was legally enforceable debt as on that date. (v) The accused has rebutted the presumption under Ss. 118 and 139 of the Act and the complainant failed to discharge reverse burden; (vi) The complainant is a company. The complainant failed to prove that the complaint was filed by the authorized person and PW.1 was authorized to give evidence on behalf of the complainant. 8. Since the acquittal was granted on technical ground of non production of resolution of the Company authorizing PW.1 to file the complaint and to give the evidence, the appellant has filed I.A.No.1/2020 under Sec. 391 of Cr.P.C. seeking permission to produce Bye-laws and the Resolution of the Complainant Bank authorizing the Chief Executive Officer of the Bank to represent it and also to delegate the powers to the employees of the bank to conduct the proceedings. 9. In the application it is contended that the complainant had not produced those documents before the trial Court under bonafide impression that the same were produced in C.C.No.6153/2016 another proceeding between the same parties. The complainant seeks leave for production of those records to serve the cause of justice. 10. The said application is opposed by the respondent/accused denying the cause pleaded for non production and claiming that those documents are concocted documents. Submissions of Sri M.V.Sridhar Chakravarthi, learned Counsel for the appellant assailing the impugned judgment and order: 11. The accused admitted his signatures on the cheque and that the cheque belongs to his account. The trial Court having held that the loan transaction was proved acquitted the accused on the technical ground that the loan was recovered before due date. When there was no such defence of the accused, the trial Court committed perversity in giving such findings that there was no legally recoverable debt. The other technical ground of acquittal of the accused was that the authorization to file the complaint and to give evidence was not proved. When there was no such defence of the accused, the trial Court committed perversity in giving such findings that there was no legally recoverable debt. The other technical ground of acquittal of the accused was that the authorization to file the complaint and to give evidence was not proved. Due to bona fide error, the Resolution of the Board of Directors and the complainant authorizing Smt.Thanuja the Chief Executive Officer of the bank to delegate the powers to her sub-ordinate to sue any person on behalf of the company and to conduct the case was not produced. Now the same is produced before this Court by filing application under Sec. 391 of Cr.P.C. Having regard to the fact that the appellant is Cooperative society and public money is involved, the complainant shall not be thrown out of Court on technical grounds. Therefore the said additional evidence may be received. 12. In support of his submissions, he relies on the following judgments: 1. Mr.N.Srinivasa Murthy and Ors. v. State of Karnataka and Anr., Crl.P.No.2314/2016 DD 6/2/2019. 2. APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers, AIR 2021 SC 2814 3. Sripati Singh v. The State Of Jharkhand, 2021 SCC Online SC 1002 4. D.K.Chandel v. M/s.Wockhardt Ltd.,Crl.A.No.132/2020 DD 20/1/2020 5. Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 . 6. Uttam Ram v. Devinder Singh Hudan, 2019 (2) Kar. L.R 717 (SC) Submissions of Sri G.V.Dayananda, learned Counsel for the respondent/accused supporting the impugned judgment and order: 13. The complainant has failed to prove the transaction by adducing credible evidence. The complainant has misused the cheque issued by the accused in connection with loan transaction for the year 2000, though the said loan was discharged. Admission of PW.1 in the cross-examination shows that the alleged loan transaction of Rs.50,00,000.00 was false. As rightly held by the trial Court, the accused rebutted the presumption. Thereafter the complainant did not discharge reverse burden to prove the transactions. The reasons assigned for additional documents are all false. The documents submitted before this Court are concocted one, therefore the appeal and the application are liable to be dismissed. 14. Having regard to the rival submissions of the parties the points that arise for consideration is: (i) Whether the impugned order of acquittal is sustainable in law? The reasons assigned for additional documents are all false. The documents submitted before this Court are concocted one, therefore the appeal and the application are liable to be dismissed. 14. Having regard to the rival submissions of the parties the points that arise for consideration is: (i) Whether the impugned order of acquittal is sustainable in law? (ii) Whether I.A.No.1/2020 filed by the appellant/complainant under Sec. 391 of Cr.P.C. for production of additional evidence deserves to be allowed. Analysis: 15. Before considering the contentious questions of fact, it is necessary to examine the legal principles on the proof of the offence under Sec. 138 of the Act. Though the appellant relied on host of judgments in that regard, the ratio in all those judgments is as follows: (i) Once the accused admits his signature on the cheque and that the cheque pertains to his account, as per Sec. 118 of the Act initially the Court shall presume that the complainant has received the cheque for consideration. Further as per Sec. 139 of the Act initially the Court shall presume that the cheque was issued for discharge of any debt or other liability. The said initial presumption is mandatory. (ii) The aforesaid presumptions are rebuttable. The burden lies on the accused to rebut the said presumption. (iii) The burden on the accused to rebut the presumption is not as strict as on the complainant. But at the same time, mere denial or explanation is not sufficient. The defence raised by way of rebuttal evidence must be probable and acceptable by a man of ordinary prudence. (iv) The accused has to probabalise such defence by leading his evidence. In exceptional cases he can rebut such presumption by the evidence of complainant himself without leading his own evidence. (v) Once the presumption is rebutted the burden reverses to the complainant to prove the fact that the cheque was issued for discharge of legally recoverable debt or liability. (iv) The accused has to probabalise such defence by leading his evidence. In exceptional cases he can rebut such presumption by the evidence of complainant himself without leading his own evidence. (v) Once the presumption is rebutted the burden reverses to the complainant to prove the fact that the cheque was issued for discharge of legally recoverable debt or liability. (vi) Whenever the accused has questioned the financial capacity of the complainant in support of his probable defence, despite the presumption under Sec. 139 of the N.I. Act about the presumption of legally enforceable debt and such presumption is rebuttable, thereafter the onus shifts again on the complainant to prove his financial capacity and at that stage the complainant is required to lead the evidence to prove his financial capacity, more particularly when it is a case of giving loan by cash and thereafter issuance of a cheque. 16. In the light of the aforesaid legal propositions, it has to be examined whether the accused rebutted the presumption and the complainant discharged the reverse onus. 17. In the complaint, statutory notice and in the evidence of PW.1, it was stated that the accused borrowed property loan of Rs.50,00,000.00 in April 2014 in the loan account Nos.19/2014 and 25/2014 and committed default in repayment. It was further alleged that towards discharge of that loan, in 2016 he issued cheque Ex.P2. 18. The accused did not deny his signature on the cheque or that the cheque pertains to his account. His contention was that he had borrowed loan in 2000 and in that transaction as security he had issued Ex.P2 and the same loan was cleared in 2012. He further alleged that the complainant without returning the said cheque, misusing the same has filed false complaint. He denied the loan transaction or borrowing loan of Rs.50,00,000.00. 19. The evidence on record sufficiently shows that the accused and his family members were also members of the complainant company and that they had borrowed other loans also. It is no doubt true that PW.1 admitted that availment of the loan by the accused in 2000 and clearance of the same in 2012. However, PW.1 disputed that Ex.P2 was issued as security for the loan in the year 2000 and misusing that false complaint was filed. 20. It is no doubt true that PW.1 admitted that availment of the loan by the accused in 2000 and clearance of the same in 2012. However, PW.1 disputed that Ex.P2 was issued as security for the loan in the year 2000 and misusing that false complaint was filed. 20. Since the accused admitted his signature on the cheque and that the cheque pertains to his account, the trial Court also held that presumption under Ss. 118 and 139 of the Act arises regarding passing of the consideration and cheque being issued towards legally recoverable debt. Then the burden shifted to the accused to rebut that presumption. It was for the accused to probabilise his defence that the cheque was issued in 2000 and that was misused. The said defence was vehemently denied by the complainant. 21. The accused himself contended that alleging misuse of the cheque, he filed criminal case against the Chairman, Director, Recovery Officer and Managers of the Company. Based on that complaint, the first information report against them was registered in Crime No.205/2016. The accused therein filed Crl.P.No.2314/2016 before this Court seeking quashing of the said FIR and the proceedings. This Court vide order dtd. 6/2/2019 allowed the said petition and quashed the first information report. 22. During the course of that order in Crl.P.No.2314/2016 this Court held that the allegations made in the complaint are obliquely motivated and are calculated to dissuade and harass the accused therein from enforcing the loan liability against the present respondent No.2 and his family members. It was also held that the complaint is malafide and illegal and abuse of the process of the Court. That order has attained finality. Thereby the defence that cheque was issued for earlier transactions and misusing that the accused was falsely implicated in the case and the loan documents are fabricated etc. have no legs to stand. 23. Even the trial Court accepted that the cheque was issued in loan transaction of Rs.50,00,000.00. However, it held that loan was repayable from 2014 till 2024 and that had not become overdue, therefore presentation of the cheque was prematured and it cannot be said that then the loan was legally recoverable. 24. The complainant claims that the accused committed default in payment of the loan. However, it held that loan was repayable from 2014 till 2024 and that had not become overdue, therefore presentation of the cheque was prematured and it cannot be said that then the loan was legally recoverable. 24. The complainant claims that the accused committed default in payment of the loan. It was not the case of the accused himself that the loan was prematurely recalled or that was not due as on the date of the issuance of the cheque or presentation of the cheque as the case was denial of availment of loan itself. However, the Court itself made out the case of such premature recalling of the loan to the accused. It was not the defence of the accused that the he had paid installments which had fallen due. On admitting the cheque, the accused has to probabilise the defence and to establish that. It was not the case of the accused that he had paid the installments which had fallen due, therefore there was no reason to recall the entire loan. Therefore the findings of the trial Court regarding the accused probabilizing his defence on such ground are unsustainable. 25. Similarly observations of the trial Court that the complainant has failed to prove that there was onetime settlement was also extraneous as it was nobody's case. 26. Then the only point that remains for consideration is whether acquittal of the accused on the ground of proof of authorization of PW.1 to file the complaint and to give evidence. 27. PW.1 in her evidence deposed that the Board of Directors had passed resolution authorizing her to file the complaint and to give evidence. However, such authorization was not proved. The trial Court relying on the judgment of this Court in CREF Finance Ltd., Kolkata vs. Sree Shanthi Homes Pvt. Ltd., B'lore & Anr., ILR 2014 KAR 2168 . and George Joseph vs. HMT (International) Limited, Bangalore and another, [ 2015 (2) KCCR 1476 held that in the absence of Board's Resolution in favour of complainant/PW.1 to file the complaint and to give evidence, the complaint is not maintainable. 28. and George Joseph vs. HMT (International) Limited, Bangalore and another, [ 2015 (2) KCCR 1476 held that in the absence of Board's Resolution in favour of complainant/PW.1 to file the complaint and to give evidence, the complaint is not maintainable. 28. However, in para 28 of the judgment in George Joseph's case referred to supra, this Court relying on the judgments of the Apex Court in M.M.T.C. Ltd. v. Medchl Chemicals and Pharma (Pvt.) Ltd. [ (2002) 1 SCC 234 ] and United Bank of India vs. Naresh Kumar [ (1996) 6 SCC 660 ] held that the lack of authority could have been supplied even before the Appellate Court when the issue arose for consideration. That goes to show that there is scope in the appeal for rectification of the omission of non production of the document authorizing to file the complaint. 29. Therefore it can be held that this Court is not totally barred from receiving such documents at the Appellate stage if the Appellate Court finds additional evidence to be necessary. Sec. 391 of Cr.P.C. authorizes the Appellate Court on recording its reasons either to take such evidence itself or direct the learned Magistrate to take such evidence. 30. The loan borrowed in the case is huge amount of Rs.50,00,000.00. The complainant is a public institution where the money of the public is at stake. The records show that the accused having borrowed the money, obstructed the complainant's officials when they sought to recover the same, thereby driving the complainant party to file the complaints found in Exs.P14 to P17. In those cases, cognizance was taken against the accused and his family members. By filing the complaint against the complainant party, the accused entrapped them into criminal proceedings which were quashed by this Court as aforesaid. 31. Having regard to the aforesaid facts and circumstances, this Court finds it necessary in the interest of justice to permit the complainant to adduce additional evidence. At the same time, the accused/respondent shall have opportunity to meet those documents with regard to his contentions that those documents are concocted one. That exercise can be done by remanding the matter to the trial Court to record the evidence regarding the documents sought to be produced before this Court and give findings only with regard to maintainability of the complaint for want of authorization. That exercise can be done by remanding the matter to the trial Court to record the evidence regarding the documents sought to be produced before this Court and give findings only with regard to maintainability of the complaint for want of authorization. Therefore the following: O R D E R I.A.No.1/2020 is allowed and the appeal is partly allowed. The appellant/complainant has proved that the accused has committed the offence punishable under Sec. 138 of the Act. The trial Court shall record the evidence regarding additional documents produced before this Court. The trial Court shall decide the maintainability of the complaint for want of proper authorization by giving opportunity to both the parties. Based on the decision on the maintainability of the complaint, the trial Court shall decide about the acquittal or the conviction and sentence of the accused. The appeal is disposed of accordingly.