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2015 (2) TMI 1370 - HC - Indian LawsDishonor of Cheque - legally enforceable debt or liability or not - acquittal of the accused - complaint was properly presented and prosecuted or not? - HELD THAT:- The Power of Attorney Holder who presented the complaint in his sworn statement did not utter anything as to how he acquired the knowledge about the transaction. Verifying the complainant and swearing to an affidavit in the capacity of legal consultant and Power of Attorney does not necessarily mean that he has witnessed the transaction in due course in the capacity of agent or possess due knowledge of the transaction. In the absence of specific assertion in this regard, in the complaint and his sworn statement placed by way of affidavit, the court is under no obligation to draw favorable presumption about the competency of the deponent of the affidavit. That vitiates the very cognizance taken by the Magistrate and issue of process ordered. The cheque is issued by the accused in respect of the loan availed by her husband. The hire purchase loan agreement is not produced in evidence. The copy of the hypothecation agreement deed authorizes the payee for presentation of the postdated cheques issued towards installment payments of the loan amount. That being so, it is clear that the cheque in question was taken as security to the loan amount which had to be paid in installments - There is no evidence from his side about the actual amount due after the vehicle in question was seized. Basic requirement of offence under Section 138 of the N.I. Act, is, the Cheque ought to have been issued for discharge in whole or in part of any debt or other liability, but that is not established by the complainant. It needs to be asserted that the case of the appellant fails for another reason also i.e. not making out a case for an offence punishable under Section 138 of N.I. Act. and the impugned judgment does not call for interference - Appeal dismissed.
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