TaxTMI 
TaxTMI 
2025 (9) TMI 925
X X X X Extracts X X X X
X X X X Extracts X X X X
....hey entered into an agreement to sale plot No. 106-B at mouza Ambazari, admeasuring 6000 square feet jointly owned by above said Prabhakar Bansod and ors for consideration of Rs. 2,70,00,000/-. Said Vaishali Jaiswal has paid Rs. 20.00 lacs towards consideration amount to the vendors through the nonapplicant, who is accused. The said amount was received by vendors in presence of the accused. As per the agreement, balance amount shall be paid by purchaser on completion of legal documents and on execution of sale deed on or before 31.12.2009. However, the above agreement has been cancelled by the said parties and the vendors returned amount Rs. 5,50,000/- through the accused in the name of the applicant, since he is the Power of Attorney Holder to receive the amount on behalf of Vaishali Jaiswal, by cheque bearing No.no. 231307 dated 8.12.2009 drawn on "Shamrao Vitthal Cooperative Bank Limited". On depositing the said cheque, it was dishonoured and returned with endorsement "Funds Insufficient". Therefore, the applicant issued notice dated 23.12.2009 by RPAD. On receipt of the notice also, the accused has not paid the amount and, therefore, the applicant was constrained to file compla....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e SC 1741. 8. Per contra, learned counsel for the nonapplicant submitted that the burden on accused is to rebut the presumption on the basis of preponderance of probability. The complainant entered into transaction has not entered into the witness box. As far as Power of Attorney is concerned, the evidence must reflect that the Power of Attorney Holder is aware and conversant with the facts that there is no whisper either in the complaint or in the evidence that the Power of Attorney Holder is conversant with the facts and, therefore, the evidence of the complainant is not sufficient to prove the guilt of the accused. 9. After hearing both the sides and perusing the evidence on record, it reveals that in support of the contentions, the applicant, who is Power of Attorney Holder, entered into the witness box and reiterated as to the transaction between complainant Vaishali Sanjay Jaiswal and vendors Prabhakar Ramchandra Bansod and ors. Admittedly, it is the case of the complainant that as the Agreement to Sell was cancelled by the parties, the vendors returned amount of Rs. 5,50,000/- through the accused by cheque bearing No.no. 231307 dated 8.12.2009 which was deposited and r....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... maintainability of the complaint under Section 138 of the NIA filed by the Power of Attorney Holder on behalf of the original complainant and necessity of specific averments as to the knowledge of the Power of Attorney Holder with respect to the facts and circumstances leading to dishonour of cheques and preference of criminal proceedings, held as under: "21. In terms of the reference order, the following questions have to be decided by this Bench: 21.1. Whether a power-of-attorney holder can sign and file a complaint petition on behalf of the complainant?/Whether the eligibility criteria prescribed by Section 142(a) of the NI Act would stand satisfied if the complaint petition itself is filed in the name of the payee or the holder in due course of the cheque? 21.2. Whether a power-of-attorney holder can be verified on oath under Section 200 of the Code? 21.3. Whether specific averments as to the knowledge of the power-of-attorney holder in theimpugned transaction must be explicitly asserted in the complaint? 21.4. If the power-of-attorney holder fails to assert explicitly his knowledge in the complaint then can the power-of-attorney ho....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... filed by the complainant in support of the complaint under Section 138 of the NI Act. It is only if and where the Magistrate, after considering the complaint under Section 138 of the NI Act, documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness(s) is required, the Magistrate may call upon the complainant to remain present before the court and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the NI Act. 33. .............. 33.1. Filing of complaint petition under Section 138 of the NI Act through power of attorney is perfectly legal and competent. 33.2. 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. 33.3. It is required by the complainant to make specific assertion as to the knowledge of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iswal and vendors. His entire evidence nowhere nowhere reflects that he was having complete knowledge as to the transaction. Even, the Power of Attorney executed in favour of the applicant nowhere reflects that as he is aware about the entire facts of the case, he is authorized by said Vaishali Jaiswal to depose before the court. Thus, considering the nature of the evidence, admittedly, it nowhere fulfills the criteria that either he witnessed the transaction as an agent of payee/holder in due course or possesses due knowledge regarding the said transaction. 17. Coming to the another aspect that whether the cheque was issued against against discharge of legal and enforceable. 18. Recital of the complaint itself shows that the Agreement of Sale took place between Vaishali Jaiswal and owners of the property in question and accused was broker in that. The cheque was issued by the vendors through the accused. The cross examination of the complainant shows that he has no document to show that any transaction took place in the nature of agreement between Vaishali Jaiswal and vendors and the same was cancelled. 19. Thus, as far as discharge of legal and enforceable debt is concer....