TMI Blog2016 (12) TMI 1872X X X X Extracts X X X X X X X X Extracts X X X X ..... averments of the complaint, he can verify on oath, but the rider is that a 'Power of Attorney Holder' should have witnessed the transaction as an Agent of the Payee/Holder in Due Course should possess the requisite knowledge about the transaction in question - the strict liability under Section 138 of the Negotiable Instruments Act can be enforced only when cheque was issued in discharge of any legally enforceable debt or other liability partly or wholly. However, the onus to establish that cheque was not issued against a legally enforceable debt was on the Respondent/Accused. There is no two opinion of an important fact that a cheque must be issued in respect of either post or existing debt or other liability. One of the essential ingredients of an offence under Section 138 of the Negotiable Instruments Act is that the cheque was drawn for discharge in whole or part of liability. If this aspect is not covered in the complaint petition, then, it will be a fatal one. Furthermore, an offence as defined in Section 2(n) of the Criminal Procedure Code includes not only the doing of possible act, but by omitting to do something as well - Under the Negotiable Instruments Act, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not proved beyond reasonable doubt and consequently, acquitted him under Section 255(1) Cr.P.C. 3. Challenging the Legality of the Judgment of Acquittal dated 06.09.2013 passed by the trial Court in acquitting the Respondent/Accused, the Appellant/Complainant (through his Power Agent) has filed the instant Appeal, basically contending that the trial Court had acquitted the Respondent/Accused based only on 'presumptions, surmises and conjectures' and furthermore, the evidence of P.W.1 was not taken into account while passing the impugned Judgment. 4. It is represented on behalf of the Appellant that the Respondent/Accused had borrowed the Loan, which was arranged by the Appellant from numerous financiers and that the same was paid by means of cheque, which was encashed by the Respondent, which was not disputed at any point of time. 5. The Learned Counsel for the Appellant urges before this Court that the trial Court had failed to consider Ex. P2 (Confirmation Letter dated 27.04.2009 in favour of the Appellant/Complainant) and the said execution of the document was not disputed by the Respondent and this pivotal aspect was not borne in mind at the time of passing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t brought to the fore and also that, the Appellant/Complainant was not given any authority by the financiers to recover the loan amount and that the trial Court, at paragraph 13 of its Judgment, had clearly opined that the Appellant/Complainant had not given loan to the Respondent/Accused, there was no outstanding loan to be paid by the Respondent/Accused to the Appellant and as such, for the case pronote, there was no consideration and also that, when there was no outstanding loan, under these circumstances, the Appellant/Complainant cannot file a complaint under Section 138 of the Negotiable Instruments Act. Further, the trial Court had proceeded to state that the Respondent/Accused in proper manner had rebutted the presumption under Section 139 of the Negotiable Instruments Act and through evidence, when it came to light that the Respondent/Accused had no loan amount to be paid to the Appellant/Complainant, in the present case, the presumption under Section 139 of the Negotiable Instruments Act was properly repudiated and ultimately, the Respondent/Accused was acquitted, giving him the benefit of doubt in his favour, which may not be dislodged by this Court, at this distance poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Accused and given to Shamlal and to a suggestion whether one cheque was made for ₹ 1,50,000/- and another cheque for ₹ 50,000/-, he had stated that he had to look into the documents and to answer the same and that he does not remember correctly. 14. P.W.1 proceeds to state in his evidence that Ex. P2 (Confirmation Letter) was written in favour of Shamlal by the Respondent/Accused and his wife viz., Radhakrishnan. Moreover, P.W.1 had stated that in Ex. P2 a sum of ₹ 5,00,000/- was shown and out of that, a sum of ₹ 2,50,000/- was paid by the Respondent/Accused and Shamlal had received a sum of ₹ 10,000/- as commission for the advancement of loan of ₹ 5,00,000/-. 15. Apart from that, P.W.1 had deposed that either in the Complaint or in the Lawyer's Notice or in his chief examination (sworn statement), it was not mentioned that the Complainant (Shamlal) had received the 'Broker Amount'. 16. D.W.1 (Respondent/Accused) in his evidence had stated that in the year 2008, he had asked for money with the Complainant - Shamlal and that he had given the money after obtaining the same from five persons for which he had taken the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat since the Respondent/Accused had failed and neglected to pay the cheque amount in question even after receipt of Ex. P5-Lawyer's Notice dated 07.05.2010 issued on behalf of the Appellant, the present complaint was filed before the trial Court (in respect of an offence under Section 138 of the Negotiable Instruments Act). 20. It transpires that the Appellant (Complainant - J. Shamlal) had executed Special Power of Attorney to and in favour of J. Arjunlal (his brother) for the purpose of engaging or appointing any Advocates, Vakils, Pleaders, Attorney, Auditors etc., to sign and verify Plaints, Written Statements, Affidavits, Documents, Execution Petition, Claim Petition and all other Documents and Papers to institute or defend or continue any proceedings in any Court of Law in which he may be interested or concerned and to appear in any Court or Courts or before any Judge, Magistrate, Police and other Officers for administrating, Law, Justice and equity of whatsoever nature. Also, the said Ex. P1 (Special Power of Attorney) refers to the authorisation given to Arjunlal (P.W.1) to sign and file Complaints, Applications, Petitions, Civil and Criminal Cases and executions in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which, it was informed that necessary criminal proceedings will be initiated etc. 23. The Respondent/Accused had given a Reply Lawyer's Notice Ex. D2 dated 02.06.2010 addressed to the Appellant/Complainant's Lawyer stating that on 27.04.2009 the Appellant/Complainant (J. Shamlal) had arranged ₹ 5,00,000/- from various financiers while obtaining signatures in blank promissory notes, blank cheques and blank papers from his client and his wife Mrs. M. Shanthi and one Mr. N.M. Radhakrishnan as security. 24. Continuing further, it was stated that the Respondent/Accused had settled the entire loan liabilities in time, the financiers refused to hand over the blank documents even after repeated requests and ultimately, the Appellant/Complainant came to the rescue of the financiers and insisted upon the Respondent/Accused to pay ₹ 1,00,000/- as pre-condition for returning of the documents or else the blank cheques would be used etc. Moreover, in Ex. D2 - Reply notice, it was pin pointedly made mention of that the present notice (Ex. P5) was issued by misusing the blank cheques handed over to the financiers on trust. 25. Besides the above, in Ex. D2- Reply Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s constituting an offence before the Magistrate concerned, who is empowered to take cognizance. One cannot brush aside an important fact that an explicit assertion as to the knowledge of 'Power of Attorney Holder' about the transaction in issue must be stated in the complaint, as opined by this Court. If a 'Power of Attorney Holder' who is not possessing any knowledge as to the transaction in question, then, he cannot be examined as a witness in a given case. 29. Apart from the above, a 'Power of Attorney Holder' can adduce evidence before the Court concerned and also to prove the averments of the complaint, he can verify on oath, but the rider is that a 'Power of Attorney Holder' should have witnessed the transaction as an Agent of the Payee/Holder in Due Course should possess the requisite knowledge about the transaction in question. 30. It is to be remembered that the Hon'ble Supreme Court in the decision Janki Vashdeo Bhojwani V. Indusind Bank Limited reported in AIR 2005 SUPREME COURT 439, it is held that 'the 'Power of Attorney Holder' can appear as witness in his personal capacity and this is because of the ingredients of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As far as the present case is concerned, the Appellant/Complainant (Shamlal) was not examined as a Witness on his side instead the Appellant/Complainant's brother (Special Power of Attorney Holder) was examined as P.W.1. Before the trial Court, P.W.1 (in his cross examination) had stated that he had filed the present case for Shamlal (Complainant) and that to a suggestion, as to how much money was given to the Respondent/Accused by the said Shamlal (Complainant), he had stated that ₹ 5,00,000/- was given and from the Respondent/Accused, the Complainant (Shamlal) had received the cheque and the Respondent/Accused had given two cheques for Shamlal and that Ex. P2 was executed by the Respondent/Accused. Although P.W.1, by virtue of Ex. P1 - Special Power of Attorney, is entitled to file complaint in C.C. No. 3332/2010 on the file of the Learned VII Metropolitan Magistrate, Chennai. On behalf of the Complainant, on his examination as P.W.1 (as a witness in the capacity of Complainant) is impermissible in Law. Only for a limited extent of preferring a complaint, for the purpose of taking cognizance, by means of Ex. P1 - Special Power of Attorney, the Ex. P1 is held to be leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective financiers were not examined. 35. In this connection, this Court points out that existence of a legally recoverable debt is not a matter of presumption under Section 139 of the Negotiable Instruments Act. Undoubtedly, Section 138 of the Negotiable Instruments Act is a penal provision. Section 139 applies only if 'Cheque' was established to be of nature stated in Section 138. Strictly speaking, the strict liability under Section 138 of the Negotiable Instruments Act, 1881 could be enforced only when cheque was issued in discharge of any legally enforceable debt or other liability, partly or wholly the burden to prove the cheque was not issued against the legally enforceable debt, of course is on the Respondent/Accused. Moreover, the term 'Payee' means the party to whom a bill of exchange, cheque or note is payable. 36. Ordinarily, it is to be borne in mind that an Appellate Court is not meant to fill up lacuna or plug loopholes in the prosecution evidence. A miscarriage of Justice might have occurred wherein an Accused would have been acquitted. However, it cannot be gainsaid that the Appellate Court can exercise its discretionary power to prevent an Off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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