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TMI Blog2024 (6) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... gorically admitted in cross examination that he is not in a position to depose regarding the entire matters in connection with the transactions between the accused and the complainant and he is also not in a position to say under what circumstance, the complainant issued Exhibit D1 notice to the accused and as to whether any legal proceedings was initiated against the accused by the complainant on the basis of Exhibit D1 notice. It is pertinent to note that the specific case of the accused is that he has paid the entire instalments to the complainant as per Exhibit P7, hire purchase agreement and that no amount is due from him to the complainant in that connection. There are no reason to disagree with the finding in the impugned judgment th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and no evidence adduced from the side of the accused. After considering the oral and documentary evidence on record and after hearing both sides, the trial court found the accused guilty of the offence under Section 138 of the NI Act and sentenced him to undergo simple imprisonment for 3 months and to pay a compensation of Rs.26,000/- and in default of payment of compensation, to undergo simple imprisonment for one month. 4. Against the trial court judgment, the accused filed Crl. Appeal No. 294 of 2005 and as per the impugned judgment dated 20.9.2006, it was found that the complainant failed to prove the existence of a legally recoverable debt from the side of the accused and that PW1, the power of attorney holder of the complainant, wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on between the accused and the complainant and therefore, there is no valid ground to interfere with the impugned judgment. 8. A perusal of the complaint shows that the specific case of the complainant is that the complainant has advanced a loan of Rs.70,000/- to the accused in furtherance of a hire purchase agreement dated 07.03.2001 and that Exhibit P2 cheque was issued by the accused towards part payment. But, there is nothing in Exhibit P7 hire purchase agreement to show that the complainant advanced a loan of Rs.70,000/- to the accused. A perusal of Exhibit P7 shows that as per the terms and conditions in Exhibit P7, hire purchase agreement, the vehicle shown in A schedule of the agreement was taken on hire by the accused from the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase agreement. 10. It cannot be disputed that the power of attorney holder cannot depose regarding the matters which are known only to the complainant and that he can depose only regarding the matters in which he has personal knowledge. Since PW1 has categorically admitted in cross examination that he is not in a position to depose regarding the entire matters relating to the transaction between the accused and the complainant in connection with the issuance of Exhibit P2 cheque and that he is not in a position to depose under what circumstance the complainant has issued Exhibit D1 notice to the accused demanding payment of another cheque relating to the same transaction and as to what action was initiated against the accused on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities. 14. The Honourable Supreme Court considered the nature of the standard of proof required for rebutting the presumption under Section 139 of the Negotiable Instruments Act in M.S.Narayana Menon v. State of Kerala (2006 (6) SCC 39), and it was held that if some material is brought on record consistent with the innocence of the accused, which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal. 15. The Honourable Supreme Court in Basalingappa v. Mudibasappa [(2019) 5 SCC 418] summarised the principles of law governing presumptions under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er what circumstance, the complainant issued Exhibit D1 notice to the accused and as to whether any legal proceedings was initiated against the accused by the complainant on the basis of Exhibit D1 notice. 17. The complainant has also not produced the statement of accounts maintained in connection with Exhibit P7, hire purchase agreement, and the evidence of PW1 in cross examination shows that the complainant has engaged representatives for collecting instalments and during the relevant period, Sreedaran and Pushpan were the representatives in charge of Kannur and that the complainant used to issue receipts only when the representatives entrust the amount in the office of the complainant and therefore, merely because receipt is not issued, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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