TMI Blog2020 (12) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... e failed to rebut presumption in favour of complainant. The accused is convicted of offence punishable under Section 138 of Negotiable Instruments Act, 1881 - Appeal allowed - decided in favor of appellant. - CRIMINAL APPEAL No. 100213/2015 - - - Dated:- 8-12-2020 - THE HON'BLE MR.JUSTICE RAVI V. HOSMANI FOR THE APPELLANT : BY SRI R.H.ANGADI, ADVOCATE FOR THE RESPONDENT : BY SRI D.V.PATTAR, ADVOCATE JUDGMENT Challenging the judgment dated 09.07.2015 passed by I Addl. Civil Judge and J.M.F.C-I, Gadag in C.C.No.123/2014 acquitting accused for offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'N.I.Act' for short), this appeal is filed by complainant- appellant. 2. Brief facts leading to this appeal are that complainant Sri Ram Transport Finance Company Limited, filed a complaint under Section 200 of Code of Criminal Procedure, 1973, (herein after referred to as 'Cr.P.C.' for short) stating that accused being one of its customer had availed loan from it to purchase Mahindra make 2007 model vehicle bearing registration number KA-26/6026 under loan-cum- hypothecation agreement number GDG BRO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el Sri R.H.Angadi, for appellant submitted that though a complaint was filed giving full details of loan transaction between complainant and accused and also produced the loan agreement, statement of account and also the cheque, bank endorsement, legal notice copy and postal acknowledgement etc., the trial Court instead of considering the complaint on merits, proceeded to acquit the accused on technical grounds, which is wholly unsustainable, calling for interference by this Court. 8. The learned counsel submitted that the reasons assigned by trial Court for passing impugned judgment were that the power of attorney issued by Company in favour of PW.1 was invalid, therefore complaint filed under its authority was not maintainable. It was also held that the cheque was given by accused as security at the time of taking loan and was not issued towards existing debt. Hence, complaint for offence under Section 138 of N.I.Act was not maintainable. It was also held that complaint was not maintainable without necessary averments in complaint regarding specific knowledge of complainant about transaction between Company and accused. 9. Learned counsel submitted that at the time of takin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding matter back to trial Court. 12. I have heard learned counsel, perused the impugned judgment and record. 13. The points that arise for consideration herein are: (a) Whether complaint filed by a power of attorney without making specific assertion about his knowledge about transaction with accused, is maintainable? (b) Whether present complaint is maintainable? 14. It is an admitted fact that complaint is filed by a power of attorney holder, on behalf of Company. In the complaint, only averment made with regard to knowledge of complainant is contained in para 1 of complaint which reads as follows: 1. That, complainant institution is a company incorporated and registered under Indian Companies Act, 1956. It is engaged in the vehicle finance business under the name and style as M/S. SRIRAM TRANSPORT FINANCE COMPANY LTD., represented by its authorized signatory and power of attorney holder, is acquainted with the facts of the complaint, has verified and signed the complaint . (emphasis supplied) 15. In view of authoritative pronouncement of Hon'ble Supreme Court in A.C.Narayanan's case (supra), point no.1 for consideration in this case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. emphasis supplied 17. In this case, accused contended that cheque in question was a post dated cheque issued for security purposes only. Which means that accused admitted his signature on cheque and its issuance to complainant. Consequently presumption under Section 118 and 139 of N.I. Act would be available to complainant as per Kishan Rao (supra) and Rangappa V/s Sri Mohan, reported in 2010 (11) SCC 441. As accused failed to substantiate his contention by cogent evidence, it has to be held that he failed to rebut presumption in favour of complainant. 18. Apart from above, Complainant in this case, has produced Cheque as Ex.P1, the Bank Endorsement as Ex.P2, the Statutory notice as Ex.P3, the Postal receipt and RPAD acknowledgment as Exs.P4 and P5 respectively and the complaint as Ex.P6. I have perused contents and find that they duly corroborate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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