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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 ..... der rendered by the learned Judicial Magistrate, Ambattur. 2. The brief facts of the case are as follows: In the month of January, 2007, the respondent approached the appellant for a hand loan to meet out his urgent family expenses, for which, on 05.02.2007, the appellant/complainant paid a sum of Rs. 25,000/- by way of a cheque bearing No.705879, dated 05.02.2007 drawn on Indian Bank, Jawahar Nagar, Chennai. The respondent had agreed to repay the said loan amount within two months along with interest at the rate of 1% per month. Since the appellant and the respondent being close friends at the time of giving loan, the appellant had not insisted the accused to execute any kind of document in support of the loan. On the next day, after rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court, the cheque has been exhibited as P.3, and the promissory note executed by the respondent, dated 28.04.2007 was marked as Ex.P.2. 4. On 28.08.2007 along with the cheque, the respondent had given the undertaking letter for the encashment of the cheque. Ex.P.4 is the letter of undertaking. Believing the words of the respondent, the appellant presented the cheque for encashment. But the cheque was dishonoured on the ground of "insufficient funds" through the return memo dated 31.08.2007. Therefore, on 01.09.2007, the appellant issued a statutory notice and the same was received by the respondent on 04.09.2007. The return memo issued by the bank authorities dated 31.08.2007 and the legal notice dated 01.09.2007 were exhibited as P.5 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x.D.2. On conclusion of the trial, the learned Judicial Magistrate, Ambattur, convicted the respondent under Section 138 of the Negotiable Instruments Act, 1881, and sentenced to undergo six months Rigorous Imprisonment and to pay a fine of Rs. 75,000/-. Further, it was ordered that in default of the payment of the compensation amount, liberty was granted to the appellant to approach the said Court under Section 431 of Criminal Procedure Code. 7. Against the said order of conviction, the respondent herein approached the Additional District and Sessions Court [Fast Track Court- II], Poonamallee by way of filing Criminal Appeal No.80 of 2010. After an elaborate enquiry, the learned Additional District and Sessions Judge [Fast Track Court-II] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low this appeal. 11. The learned counsel appearing for the respondent would submit that the first point taken in the First Appellate Court is that the case has been instituted by the appellant through her Power of Attorney (P.W.1). Being the Power of Attorney, P.W.1 is supposed to have enough knowledge about the transaction happened between the appellant and the respondent. But, in this case, the cross examination of P.W.1 discloses that he did not have enough knowledge with regard to the loan transaction. Therefore, the conclusion arrived at by the First Appellate Court is legally sustainable and prayed for dismissing this appeal. 12. In this regard, he relied on the judgment of our Hon'ble Apex Court in the case of A.C.Naraya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate is neither mandatory obliged to call upon the Complainant to remain present before the Court, nor to examine the Complainant of his witness upon oath for taking the decision whether or not to issue process on the Complaint under Section 138 of the N.I. Act. (v) The functions under the General Power of Attorney cannot be delegated to another person without specific clause permitting the same in the Power of Attorney. Nevertheless, the General Power of Attorney itself can be cancelled and be given to another person. 13. Applying the principles of our Hon'ble Apex Court with the case in our hand, as rightly pointed out by the appellant counsel in this case, P.W.1 [P.Venkatesan], who is the Power of Attorney admitted in his cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;/ ,jw;F khjk; xd;Wf;F U:gha;/100f;F tl;o U:/xd;W tPjk; nkw;go mrYld; tl;oa[k; nrh;j;J jh';fs; nfl;Fk;nghJ j';fSf;fhtJ j';fs; cj;jut[ bgw;wth;fSf;fhtJ jpUg;gpf; bfhLf;f kdg;g{h;tkhft[k;. Raepidt[lDk; ifbaGj;jpl;L cWjp mspf;fpnwd;/ 15. Therefore, as per the recitals found in the promissory note, it is clearly proved that the loan amount of Rs. 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 Rs. 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. Accordingly, interference is not necessary in the findings of the First Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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