TaxTMI 
TaxTMI 
2020 (12) TMI 1005
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.... for a total value of Rs. 1,36,604/-. The loan was agreed to repay in periodic installments. But accused defaulted in paying installments and was finally due to pay a sum of Rs. 1,02,000/-. Towards discharge of said due, accused issued cheque bearing No.270164 dated 01.12.2012 for Rs. 1,02,000/- drawn on Corporation Bank, Gadag Branch. When cheque was presented for realization through HDFC Bank, Gadag Branch, on 04.12.2012, it returned on 04.12.2012 with endorsement 'insufficient funds'. Therefore, statutory notice was issued to accused on 12.12.2012, by RPAD demanding payment of cheque amount within fifteen days. The notice was served on accused on 19.12.2012. However, accused neither made payment nor replied to the notice, constraining the complainant to file complaint against accused for offence punishable under Section 138 of N.I.Act. 3. After recording sworn statement of power of attorney holder on behalf of complainant-company and taking cognizance, summons was issued to accused. On appearance, accused pleaded not guilty; therefore the matter was set for trial. On behalf of complainant one witness was examined as PW.1 and Exhibits P1 to P6 were marked. 4. Therea....
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....rial Court had recorded sworn statement of power of attorney. But found fault with power of attorney, only at time of impugned judgment, which was perverse. He further submitted that a letter of authorization also produced, which was not considered. It was also urged that complaint contained explicit averment in para 1 that complainant was acquainted with facts of complaint, which was sufficient compliance with requirements of Order 19 Rule 1, which is also not considered by the trial Court. The complainant stated that after accused defaulted in payment of loan installments, the vehicle was seized and sold to third party and realized a portion of dues and that on a demand for balance amount, accused issued cheque in consideration for due amount. Therefore, cheque was not issued as security for loan amount at the time of its sanction but was issued towards then existing outstanding due amount. Hence the reasons assigned by trial Court were perverse. 10. Learned counsel for appellant also relied upon a decision of this Court dated 09.06.2016 passed in Criminal Appeal No.100211/2015, wherein this Court remanded matter back to trial Court for fresh consideration by providing reasona....
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....no more res-integra. A bench of three Hon'ble Judges of Supreme Court raised and answered following questions: Questions framed "21.3: Whether specific averments as to the knowledge of the power-of-attorney holder in the impugned transaction must be explicitly asserted in the complaint? 21.4: The power-of-attorney holder fails to assert explicitly his knowledge in the complaint then can the power-of- attorney holder verify the complaint presumption of knowledge? Answered as 33.2: The power-of-attorney holder can depose and verify an 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. 33.3: 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 has no knowledge regarding the transactions cannot be examined as a witness in the case." 16. From a perusal of examination-in-chief of PW1, it....
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.... that they duly corroborate complainant's case and substantiate all the ingredients to constitute offence under Section 138 of N.I. Act. 19. The reasons assigned by the trial Court firstly regarding filing of complaint through a power of attorney and examination of power of attorney as witness, the observations of the Hon'ble Supreme Court in A.C.Narayanan's case (supra) would hold good. The finding of the trial Court that the cheque in question was a post dated cheque, given as security is also found unsubstantiated by any evidence. Therefore, the reasons assigned by trial Court for acquittal are not only contrary to law but also the evidence on record and liable to be held as perverse. Hence, point no.(ii) is answered in the negative and in favour of complainant. 20. Though appellant has relied upon decision dated 09.06.2016 in Criminal Appeal No.100211/2015, it is seen that the Court did not consider issues that are raised and considered in this appeal. On examination of facts of that case, it was found that there was no reasonable opportunity to both sides to lead evidence during trial and matter was remanded to avail such opportunity. As no question of law wa....