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TMI Blog2018 (8) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... r case. Promissory note - case of respondent is that the recitals of the promissory note clearly proves that it has not been executed in favour of the appellant - Held that:- As per the recitals found in the promissory note, it is clearly proved that the loan amount of ₹ 75,000/- was received by the respondent only on 05.02.2007. But, P.W.1 to P.W.3 categorically mentioned in the proof affidavit that only ₹ 25,000/- was paid as a loan on 05.02.2007. Hence, the existing liability of the respondent has not been proved by the appellant through the cogent and convincing evidence - interference is not necessary in the findings of the First Appellate Court. Appeal dismissed. - Crl.A.No. 522 of 2011 - - - Dated:- 16-7-2018 - M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name and style of MARS TRAVELS at Kodambakkam, Chennai, had approached the appellant/complainant and ask further hand loan of ₹ 50,000/- to develop his business. 3. Considering the request made by the respondent, on 28.04.2007, the appellant gave ₹ 50,000/- after deducting the interest to the loan already availed in the month of January, 2007. At the time of availing loan, the friends of the respondent viz., N.Ramalingam and S.Mohan Reddy came to the appellant's office. Further, at the time of giving the loan amount, the appellant insisted the respondent for executing a promissory note after calculating the entire loan amount, in complying the request of complainant, the respondent executed a promissory note for ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent neither pay the principle amount nor the interest. In the statutory notice, the appellant had insisted the respondent for the payment of cheque amount within a period of 15 days from the date of receipt of the statutory notice. But on 20.09.2007, the respondent sent a reply notice along with cheque bearing No.884974, dated 19.09.2007 for ₹ 25,000/- towards part payment of the loan and the same has also dishonoured. So, after completing the legal formalities, the appellant had approached the learned Judicial Magistrate, Ambattur, through Power of Attorney one Venkatesh for initiating the action against the respondent under Section 138 of the Negotiable Instruments Act, 1881. During the time of trial proceedings, the respondent d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and issuing the cheque by the respondent had not been proved by the appellant, accordingly hold that the respondent had not committed any offence under Section 138 of the Negotiable Instruments Act, 1881. Now, challenging the said findings and for setting aside the judgment rendered by the First Appellate Court, the appellant being the complainant in the trial court has approached this Court by way of filing this appeal. 9. Today, when the Criminal Appeal is taken up for consideration, this Court heard the arguments of Mr.M. Vijayakumaran, the learned counsel appearing for the appellant, Mr.V.V.Sairam, the learned counsel appearing for the respondent. 10. The learned counsel appearing for the appellant would submit that without assign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty of the Power of Attorney, it was held as follows: While holding that there is no serious conflict between the decisions in M.M.T.C. Ltd., and Anr. v. Medchi Chemicals and Pharma (P) Ltd., and Anr. 2001 (4) CTC 749 (SC); and Janki Vashdeo Bhojwani and Anr v. Indusind Bank Ltd., and Anr. 2005 (3) CTC 128 (SC), we clarify the position and answer the questions in the following manner: (i) Filing of Complaint Petition under Section 138 of N.I. Act through Power of Attorney is perfectly legal and competent. (ii) The Power of Attorney Holder can depose and verify on oath before the Court in order to prove the contents of the Complaint. However, the Power of Attorney Holder must have witnessed the transaction as an agent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his cross-examination, he specifically stated that he did not know the transaction happened between his wife and the respondent. Further, he specifically stated that he had advanced only ₹ 50,000/- as a loan to the respondent, after deducting the interest due for the loan of ₹ 25,000/-. The said circumstances shows that P.W.1 is not having due knowledge with regard to the loan transaction happened between the complainant and the accused. The said situation is against the findings of the Hon'ble Apex Court in clause [ii] stated supra. Therefore, the said lapse on the part of the appellant will shake the very root of her case. 14. The next contention of the learned counsel appearing for the respondent is that, the recitals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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