A Power of Attorney holder can only represent a complainant in a cheque dishonour case if they have personal knowledge of the transaction. The presumption under Section 139 of the Negotiable Instruments Act can be rebutted by sufficient evidence.

ORDER :

1. This revision petition is directed against the judgment dated 24.08.2017 passed in Crl.A.No.608/2015 by the LXVI Additional City Civil and Sessions Judge, Bangalore City where under the judgment of conviction dated 26.03.2015 passed in C.C.No2430/2009 by the XVIII ACMM, Bengaluru convicting the petitioner for the offence punishable under Section 138 of the N.I.Act and sentenced to pay fine of Rs.25,30,000/- and in default to undergo simple imprisonment for one year has been affirmed.

2. Heard learned counsel for the petitioner and learned counsel for the respondent.

3. It was the case of respondent - complainant before the trial Court that petitioner - accused has negotiated with the respondent - complainant to purchase the complainant’s property situated at Kattigenahalli Village, Jala Hobli, Bangalore North Taluk for a total consideration of Rs.1.10 Crores. In pursuance of the contract, an agreement of sale was got executed and registered on 05.07.2007 and the complainant has executed power of attorney in favour of sons of accused R.Prakash and R.Somesh. At the time of execution of GPA, the petitioner - accused has expressed his financial constraints and sought for hand loan of Rs.35,00,000/- from the complainant. Accused promised to repay the said amount within 23 months. The complainant believed the words of accused and advanced Rs.35,00,000/- as hand loan to the accused. In order to repay the amount borrowed the accused said to have issued four post dated cheques in favour of the complainant dated 05.09.2007 for Rs.10,00,000/- and Rs.5,00,000/- and another two cheques dated 05.10.2007 for Rs.10,00,000/- each drawn on State Bank of Mysore, HRBR Layout Branch, Bangalore. During August 2007 the accused had requested the complainant to present the cheques in the month of march 2008. The complainant presented cheque Nos.954076 and 954077 issued for Rs.10,00,000/- and Rs.5,00,000/- and as per memo dated 04.03.2008, both the cheques were returned with endorsement “funds insufficient.” The complainant has also presented other two cheques bearing Nos.954078 and 954079 dated 05.10.2007 and the said cheques were returned unpaid as per memo dated 15.03.2008 with endorsement “funds insufficient.” The accused has requested the complainant to re-present the cheque No.954078 for Rs.10,00,000/- and agreed to pay remaining cheque amount by cash. The complainant got issued legal notice to the accused dated 31.03.2008 calling upon him to pay the amount of cheques. The said notice has been returned to the complainant with an endorsement “unclaimed.” The accused has not paid the amount of cheques within 15 days. Therefore, the complainant initiated proceedings against the petitioner for the offence punishable under Section 138 of the N.I.Act.

4. The complainant has been examined as PW.1.Thereafter he did not appear for cross-examination due to his ill-health. Thereafter, the complainant has executed special power of attorney in favour of his daughter-in-law and she has been examined as PW.2 and got marked Exs.P1 to P13. The statement of the accused has been recorded under Section 313 of Cr.P.C. Exs.D1 to D8 have been got marked in the cross-examination of PW.2. The accused has not entered the witness box to lead defence evidence. The learned Magistrate after hearing both sides and appreciating the evidence on record has convicted the petitioner for th