IMPORTANT POINT
Trial Court ought to receive power of attorney in evidence.

R.S.Ramanathan, J.—The complainant in C.C.No.351 of 2004 on the file of the learned Judicial Magistrate No.I, Salem is the appellant. The complainant filed the above complaint under Section 138 of the Negotiable Instruments Act (for short, “N.I.Act”) stating that the respondent borrowed a sum of Rs.3,00,000/- from him on 17.5.2002 and executed a pro-note for the same and also issued a cheque dated 10.12.2013 for a sum of Rs.3,00,000/- drawn on City Union Bank, Salem and the cheque was presented for collection on 10.12.2003 and the same was returned on 11.12.2003 by the bank on the ground that the account was already closed. Thereafter, notice was issued on 17.12.2003 calling upon the respondent to pay the cheque amount and the notice was received by the respondent on 20.12.2003 and thereafter, the respondent did not make any payment and therefore, the complaint was filed.

2. The appellant filed the complaint through his power agent P.Yuvaraj and examined the power agent as PW.1 and himself as PW.2 and marked the power document as Ex.P.1, Cheque dated 10.12.2003 as Ex.P.2, information received from the bank as Ex.P.3, Copy of the notice dated 17.12.2003 as Ex.P.4 and the Acknowledgment as Ex.P.5. The respondent/accused marked bank statement of the appellant/complainant as Ex.D.1 and also a paper in which some accounts were written, as Ex.D.2 and did not examine any witness on his side.

3. Upon consideration of the evidence and Exhibits marked, the learned Judicial Magistrate dismissed the complaint holding that the power of attorney Ex.P.1 was not executed on duly stamped paper and it was an invalid document and the complainant did not file his Day Book Ledger that was summoned by the order of the Court and in the cheque, payee’s name and body of the cheque were written in different ink and it was not clarified by the complainant whether the loan was given by the complainant in his individual capacity or from the HUF or from Prakash Textile firm and he has not filed any proof for payment of Rs.3,00,000/- by producing pro-note and therefore, the complainant failed to prove the passing of consideration and the complaint was not properly instituted by a properly appointed power agent.

4. Mr.T.M.Hariharan, learned counsel for the appellant/complainant submitted that the trial court without properly appreciating the provision of section 35 of the Indian Stamp Act and presumption under section 139 of the N.I.Act, erred in holding that the power of attorney was not executed on a duly stamped paper and the complainant failed to prove the passing of consideration and also failed to prove whether the amount was advanced by him or by the HUF or by Prakash Textiles in which he was a partner and no such plea was taken by sending a reply and the accused did not deny the receipt of consideration, and therefore, the Court ought to have drawn presumption under section 139 of the N.I.Act and ought to have convicted the respondent and the respondent failed to rebut the presumption and therefore, the judgment of the trial Court is liable to be set aside and the accused has to be convicted. He also relied upon the following judgments in support of his contention.

1 Hiten P.Dalai v. Bratindranath Banerjee, (2001) 6 Supreme Court Cases 16.

2 K.N.Beena v. Muniyappan and another., (2001) 8 Supreme court Cases 458.

3 P.K.Manmadhan Kartha v. Sanjeev Raj and another., (2002) 7 Supreme Court Cases 150.

4 Rangappa v. Sri Mohan., (2010) 11 Supreme Court Cases 441.

5. On the other hand, learned counsel for the respondent, Mr.Devaraj, submitted that the trial Court rightly held that the power of attorney document was not a valid document as it was not duly stamped and inadmissible under section 35 of the Indian Stamp Act and even according to the complainant, the cheque was issued one week prior to 10.12.2003 the date on which the cheque was drawn but the power of attorney document was executed on 15.9.2003 much earlier to the issue of cheque, and i