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TMI Blog2022 (8) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... gh the power of attorney holder and 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 of the payee or holder in due course or possess due knowledge regarding the said transaction. It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who had no knowledge regarding the transactions cannot be examined as a witness in the case. When PW1 was examined after remand of the matter, he had given evidence supporting the transaction and execution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal admitted. 3. Heard the learned counsel for the appellant as well as the learned Public Prosecutor. No representation for the 1 st respondent/complainant. 4. Summary of the case : One Shibu L.P, lodged complaint before the Judicial First Class Magistrate Court-V, Thiruvananthapuram against the accused alleging commission of offence under Section 138 of the Negotiable Instruments Act. The specific case put up by the complainant before the trial court is that the accused borrowed an amount of Rs.95 lakh from the complainant for his urgent personal requirement and issued cheque on 22.07.2000 drawn on Canara Bank, P.T.P Nagar, with assurance of encashment. Though the complainant accepted the cheque and presented the cheque for collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attorney holder, during further examination on 26.03.2008 categorically stated that PW1 had given evidence that his deposition given on 07.10.2005 to the effect that the knowledge he had about the transaction was hearsay, is exactly true and genuine. This is the reason why the learned Magistrate acquitted the accused. 12. The learned counsel for the appellant/complainant argued that in this matter issuance of a cheque and the signature therein were admitted fact and, therefore, the complainant could very well avail benefit of pressumptions under Sections 118 and 139 of the Negotiable Instruments Act. Since nothing extracted to rebut the presumption, the court below ought to have believed the version of PW1 and entered into conviction. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) Filing of complaint petition under Section 138 of NI 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 of the payee/holder in due course or possess due knowledge regarding the said transactions. (iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicityly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case. (iv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions cannot be examined as a witness in the case. 16. In this matter, the complaint was originally filed by Shibu.L.P, the complainant. There is no mention in the complaint to the effect that the transaction was witnessed by the power of attorney holder, PW1. It was during evidence, PW1 the power of attorney holder filed chief affidavit and in the chief affidavit he had stated that he was aware of the facts of this case. But during cross examination, as on 07.10.2005, he had given evidence that he had only hearsay knowledge about the transaction between the accused and his son. It was for the said reason, the appellate court set aside the conviction and sentence earlier imposed by the trial court. When the trial court again given opportu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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