IMPORTANT POINT
In a complaint u/s 138 of Negotiable Instrument Act if prosecuted through power of attorney holder it is required to the complainant 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 case.

U.V. Bakre, J.—This revision application is directed against the judgment and order dated 11.12.2013 passed by the learned Additional Sessions Judge, FTC-II Margao, (“Appellate Court”, for short) in Criminal Appeal No. 61/2013.

2. The said Criminal Appeal No. 61/2013 was, in turn, filed against the judgment, order and sentence dated 17.4.2013 passed by the learned Judicial Magistrate, First Class, ‘B’ Court Vasco (‘J.M.F.C.’, for short) in Criminal Case No. 113/OA/NIA/2011/B. Applicant was the complainant whereas respondents were the accused in the said Criminal Case. The parties shall hereinafter be referred to as per their status in the said Criminal Case.

3. The complainant had filed a complaint against the accused persons for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘N. I. Act’, for short) which gave rise to the said Criminal Case. The case of the complainant, in short, was as follows:

Complainant was a company engaged in the business of operating barges for transportation of mineral ore and it also gave its barges on hire to interested operators. The accused No. 2 was engaged in the business of transportation of mineral ore and carried on business under the name and style as M/s Adithri Trading Company i.e accused No. 1. Accused No 2 was the sole proprietor of accused No.1. The accused took on hire a barge of the complainant by name M.V. Shri Rashtroli. Initially, the accused engaged the said barge for M/s Omkar Logistics and made two trips. The accused guaranteed payment of freight charges for the said two trips and requested the complainant to raise invoices in the name of M/s Omkar Logistics, to which the complainant agreed. Thereafter the accused operated the said barge for their own business. The complainant raised two invoices in the name of M/s. Omkar Logistics and six invoices in the name of the accused no.1 (with details as mentioned in paragraph 4 of the complaint). The accused made payments against running account and an amount of Rs.16,50,493 was paid by cheques and RTGS mode of payment was effectively realized. Thereafter the accused made further payment of Rs.25,00,000 by cheque bearing no. 524141 dated 15.10.2011 drawn on UCO Bank, Vasco-da-Gama, Goa on account. The said cheque when presented was returned dishonoured on 10.11.2011 with the remark “payment stopped by the drawer”. By a legal notice dated 22.11.2011, the complainant called upon the accused to make the payment of the cheque amount within 15 days, from the date of receipt of notice. The said notice was duly received by the accused on 25.11.2011 but they did not make payment and on the contrary sent a reply dated 7.12.2011 inter alia making false allegations against the complainant and denying the liability. Hence the complaint.

4. Upon substance of accusation being explained to the accused persons, they pleaded not guilty and claimed to be tried. The complainant examined its consultant Shri Tukaram Parab, in his capacity allegedly as its Constituted Attorney, as PW1. He produced various documents. The statement of accused No. 2 came to be recorded under Section 313 of Cr.P.C. He denied the case of the complainant and stated that he was not liable to pay any amount to the complainant as regards the disputed cheque and no offence under Section 138 was made out. The accused persons did not examine any witness in defence.

5. Upon consideration of the evidence on record, the learned J.M.F.C., held that all the ingredients of Section 138 of the N. I. Act were established against the accused beyond reasonable doubt. The accused was held guilty and was convicted of the offence punishable under Section 138 of N. I. Act and was sentenced to undergo Simple Imprisonment for a period of three months and to pay compensation of Rs.30,00,000 to the complainant, in default, to undergo Simple Imprisonment for a further period of three months.

6. Aggrieved by the said Judgment, order and sentence passed by the learned J.M.F