The main legal point established in the judgment is the requirement for the appellant to discharge the initial burden of establishing the liability under Section 138 of the Negotiable Instruments Act.

A. S. Pachhapure , J.—The appellant has challenged the Judgment and Order of the Court below, granting acquittal of the respondents for the charge under Section 138 of the Negotiable Instruments Act [hereinafter called as â‚Å“The Actâ‚ for short].

2. The facts relevant for the purpose of this appeal are as under:

The appellant submitted a complaint before the trial Court stating that towards discharge of the liability due and payable, the respondents issued a cheque bearing No. 146532 dated 15.07.2003 for a sum of Rs. 6,00,000-00 drawn on Central Bank, Bangalore, in the name of the appellant with a premise that on presentation of the said cheque on the due date, the same will be honoured. The presentation of the cheque was postponed on number of occasions on the request of the respondents and finally, when the appellant presented/that cheque through the banker i.e., the Syndicate Bank, Shanthinagar, Bangalore, it returned with an endorsement as accounts closed.

The cheque was signed by the respondents 2 and 3 on behalf of respondent No. l, which is a firm and respondent No. 2 is the Managing Partner and respondent No.3 is the partner of the 1st respondent firm. Thus, the appellant issued a notice, calling upon the respondents to make the payment and despite the service of notice, the respondents did not comply the same. The notice sent by the registered post was returned as refused. In the circumstances, he submitted a complaint against the respondents to take action for the offence punishable under Section 138 of the Act.

In response to the process issued, the respondents appeared their plea for the offence under Section 138 of the Act was recorded. The respondents pleaded not guilty and claim to be tried. The appellant examined the power of attorney holder P.W. 1 and two witnesses P.Ws. 2 and 3 and in their evidence got marked the documents Exs. P1 to 24. The statements of the respondents were recorded under Section 313, Cr. P. C. They have taken the defence of total denial. The 2nd respondent examined herself as D.W. 1 and in the evidence got marked the documents Exs. Dl to 11.

The trial Court after hearing the learned counsel for the parties and on appreciation of the material on record, ordered acquittal and aggrieved by the same, the present appeal has been filed.

3. I have heard the learned counsel for the appellant and also the respondents.

4. The point that arises for my consideration is:

Whether the appellant has made out any grounds to warrant the interference in the Judgment and Order of acquittal?

5. It is the contention of the learned counsel for the appellant that though the appellant examined his power of attorney as P.W. 1, his evidence is sufficient to award conviction and when the signature on the cheque was admitted by the respondents 2 and 3, there arises a presumption under Section 139 of the Act and therefore, the trial Court committed an error in granting an acquittal. So also, it is his submission that the power of attorney is valid and authorized P.W. 1 to give evidence before the Court to appear and conduct the cases etc. In the circumstances, he further submits that the evidence of P.W.1 could have been accepted in toto. On these grounds, he has sought for setting aside the acquittal and to award conviction.

Per contra, the learned counsel for the respondents has supported the Judgment and Order of acquittal.

6. I have scrutinized the evidence led by the parties and also the documents admitted in evidence.

7. At the first instance, to consider the special power of attorney produced at Ex. P1, it is relevant to note that it is a special power of attorney, wherein the appellant has authorized P.W.1 to appear in the cases before the jurisdictional Court at Bangalore to conduct Negotiable Instruments Act cases, to engage advocate, to file appeal or revision, to give evidence in the Court, to file complaint, withdraw any complaint if the matter is settled outside the Court and to do all other acts necessa