The main legal point established in the judgment is the requirement for the power of attorney holder to have witnessed the transaction or possess due knowledge regarding the transactions in a criminal case filed under section 138 of the Negotiable Instruments Act.

T.V. Nalawade, J. –

The appeal is filed against the judgment and order of acquittal of S.C.C. No.4564 of 2000 which was pending in the Court of learned J.M.F.C., Parbhani. The learned J.M.F.C. has acquitted the Respondent in a private complaint filed under section 138 of Negotiable Instruments Act by the appellant. Both the sides are heard.

2. The complainant Smt. Laxmibai and accused Raosaheb are close relatives. It is the case of the complainant that the accused was in need of money as he wanted to purchase a flat and so he had asked for hand loan of Rs.2.5 Lakh. He wanted this money for a period of three months. It is contended that due to the relationship, the complainant gave a hand loan of Rs. 2.5 Lakh and the accused assured to return the money within three months. It is contended that the cheque of similar amount bearing No. 786784 drawn on Marathwada Gramin Bank branch Asola was given by accused for repayment of loan and it was a post dated cheque.

3. It is the case of the complainant that when the amount was not paid she presented the cheque for encashment and the cheque bounced with the remark that there was instruction/direction from the account holder to stop the payment. After issuing the statutory notice the complaint came to be filed.

4. The accused pleaded not guilty. Both the sides examined witnesses. The accused had given reply to the statutory notice and he had taken the defence that his cheques were stolen by somebody from his shop and he had already informed to his bank that his five cheques, including the cheque in question, were missing and payment should not be made on the basis of those cheques. The accused denied that he had taken the hand loan from the complainant.

5. The husband of the complainant, holding general power of attorney, filed the complainant and he gave the evidence. One witness like a Branch Manager of the bank of the accused was examined to prove that the cheque had bounced due to directions given by the accused. On the other hand, the accused examined bank officers of two banks to show that the complainant and her son had taken cash credit loan from these two banks and at the relevant time they were defaulter and they were not in a position to give such loan to the accused.

6. In the statutory notice, no particulars like the day, date, month of giving of the hand loan were given and for first time in the complaint such particulars were given. It is specific case of the complainant that a post dated cheque was given to her. The cheque bears the date as 22nd August, 2000. In the evidence of the witness examined by complainant, like Chandrakant (PW2), it is brought on the record that the accused had informed to this bank on 21st July, 1998 that his five cheques were missing and they were probably stolen and he had put only signature on the cheques. He had requested the bank not to honour the cheques. Another letter dated 30th September, 1999 was given and even before presentation of the cheque the third letter dated 30th June, 2000 was given. The 4th letter was given on 30th September, 2000 and it can be said that the 4th letter was given after presentation of the cheque and when the cheque was dishonoured (Exhibit-46 and Exhibit-49). The evidence on record shows that the cheque book was given to the accused by his bank in the year 1998 and he had immediately informed the bank that the cheque in question and 4 more cheques were missing. In view of this record and the substantive evidence, which cannot be disputed, the case of the complainant that the hand loan was given in the year 2000 and for repayment of the hand loan the cheque was given by the accused has become doubtful.

7. The two Branch Managers like Bapurao (D.W.1) and Biharilal (D.W.2) have given evidence that the complainant and her son had taken cash credit loan from their bank but both were defaulters at the relevant time. The cash credit of Rs.75,000/- was given to the complainant and the cash credit of Rs.1 Lakh was g