TMI Blog2006 (7) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... edly a witness to the transaction also. The Manager of the drawee bank was examined as PW2. No defence evidence whatsoever was adduced. The courts below concurrently came to the conclusion that all ingredients of the offence punishable under Section 138 of the N.I. Act have been established. Accordingly, they proceeded to pass the impugned concurrent judgments. 2. Before the trial court, though no reply was given to the notice of demand, a defence was attempted to be raised that the cheque was issued not for the discharge of any legally enforceable debt/liability, but only as security when a transaction for a much lesser amount was entered into between the complainant and the accused. That cheque leaf was being misutilised by the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the complainant must mount the witness stand and tender evidence in support of his case invariably in all prosecutions under Section 138 of the Act. That is not the law at all. The complainant can prefer the complaint through his Power of Attorney holder. But the Power of Attorney holder does not step the shoes of the complainant when he comes to tender evidence on the disputed aspects. Merely because the principal has the personal knowledge, a Power of Attorney holder cannot tender evidence of facts exclusively within the knowledge of the principal. This and this alone is laid down in the decisions referred above. The rule of hearsay evidence will not permit a person to speak of facts exclusively in the knowledge of another merely beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esiding within 100 ft. of the house of the complainant that the amount was advanced by the complainant and the cheque was issued by the accused. It is true that the presence of PW1 at the time of the transaction is not narrated in the complaint. But that is not of any crucial significance when we consider the fact that the notice of demand though duly received and acknowledged did not evoke any response. It is in that background that the averments in the complaint have to be considered. In the total absence of any response to the notice of demand, the complainant was not obliged to and cannot be found fault with if he does not furnish all details of the original transaction and consideration in the complaint. Much cannot be made out of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50,000/- as compensation and in default to undergo S.I. for a further period of three months. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I Act in the decision in Anilkumar v. Shammy (2002 (3) KLT 852). I am not satisfied that there are any compelling reasons which would justify or warrant imposition of any deterrent substantive sentence of imprisonment on the petitioner. Leniency can be shown on the question of sentence. But it will have to be zealously ensured that the complainant, who has been compelled to wait from 2001 and to fight three rounds of legal battle (though he has not chosen to enter appearance in this case) for the redressal of his grievances is adeq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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