TaxTMI 
TaxTMI 
2024 (2) TMI 1627
X X X X Extracts X X X X
X X X X Extracts X X X X
....ell as the learned counsel for the respondents in detail. Perused the lower court records. 3. I shall refer the parties in this Revision Petition as `complainant' and `accused' for convenience. 4. The complainant lodged complaint alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (`N.I Act' for short) contending that the complainant used to supply electrical equipments and products to the 6th accused on behalf of accused 1 to 5 and the 1st accused issued cheque for Rs. 7,83,929.50 dated 18.04.2009 drawn on South Indian Bank signed by the 2nd accused as the Director of the 1st accused for discharging the liability of the 6th accused, as on 18.04.2009. On presentation of the cheque, the same got dishonoured for want of funds. Consequently, notice of dishonour was issued and the amount covered by the cheque was demanded, but the accused did not heed the demand. 5. The trial court took cognizance of this matter and issued summons to the accused and proceeded with trial on compliance of the legal formalities. 6. During trial PW1 examined and Exts. P1 to P21 were marked on the side of the complainant. Exts. D1 to D2 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e decision reported in (2013 (4) KLT 21 (SC) : 2013 (2) KLD 539 : 2013 (4) KLJ 279 : AIR 2014 SC 630 : 2014 CriLJ 576 : (2014) 11 SCC 790 : 2013 (3) KHC 885), Narayanan A.C. & Anr. v. State of Maharashtra & Ors., 3 Bench of the Apex Court considered filing of a complaint by the power of attorney and the nature of evidence of the power of attorney required to prove the transaction. In the said case, the Apex Court settled the following principles: "(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 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 c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dheri (east), Mumbai, and its branch office at Onida House, M.S and S chambers, No. XII/992, 993, Civil Line Road, Padamughal, Thrikkakara, Ernakulam, do hereby solemnly affirm and state as follows: "1. I am the Branch Accountant of the complainant company and I am conversant with the facts of the case. 2. The complainant MIRC Electronics Ltd., is a Company incorporated under the provisions of the Companies Act 1956 and is having its registered office at G-1, MIDC Onida House, Mahakali Caves Road, Andheri (E), Mumbai 400 093 and is engaged in the business of manufacturing and marketing of televisions, washing machines, microwave over etc. under the name and style ONIDA and IGO." 12. When PW1 was cross examined, PW1 given evidence that he had been working in the company for the last 3 years and he did not know the transaction between the company and accused directly and he came to know about the transaction only after his appointment. Further his evidence is that he did not know the direct role of Accused 1 to 5 in the partnership. But he understood the same through records. His further version is that as per the records he understood that they involved in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er Section 138 of the Negotiable Instruments Act, is concerned, the same shall be discharged by proving the transaction which led to execution of the cheque. In the instant case, obviously, the transaction was prior to the appointment of PW1 in the company. So he had no direct knowledge regarding the transaction. Holding the view that since the complainant is a company, it may be difficult to examine the persons who had direct knowledge with regard to the transaction, then also, the burden to prove the issuance and execution of the cheque with certainty, would be upon the complainant and for which somebody who witnessed issuance and execution of the cheque should have been examined. 17. Even though the contention raised by the learned counsel for accused 1, 2 and 6 is that, PW1 examined in this case is the power of attorney holder, who had no direct knowledge, in fact, PW1 is not the power of attorney holder of the company. However, in order to prove the transaction led to execution of the a cheque, somebody who should have direct knowledge regarding the transaction, issuance and execution of the cheque must be examined. When the complainant limits the evidence as that of an off....