Point of Law : Law is settled on point that a complaint alleging commission of offence under Section 138 of Negotiable Instruments Act can be presented through power of attorney holder and power of attorney holder can depose and verify on oath before court in order to prove contents of complaint.

JUDGMENT :

This appeal is at the instance of the original complainant in C.C.No.155/2004 on the file of the Judicial First Class Magistrate Court-V, Thiruvananthapuram. The sole accused in the above case is the 1st respondent herein and State of Kerala represented by the learned Public Prosecutor is arrayed as the 2nd respondent.

2. At the time of admission, leave granted and appeal admitted.

3. Heard the learned counsel for the appellant as well as the learned Public Prosecutor. No representation for the 1st respondent/complainant.

4. Summary of the case : One Shibu L.P, lodged complaint before the Judicial First Class Magistrate Court-V, Thiruvananthapuram against the accused alleging commission of offence under Section 138 of the Negotiable Instruments Act. The specific case put up by the complainant before the trial court is that the accused borrowed an amount of Rs.95 lakh from the complainant for his urgent personal requirement and issued cheque on 22.07.2000 drawn on Canara Bank, P.T.P Nagar, with assurance of encashment. Though the complainant accepted the cheque and presented the cheque for collection through District Co-operative Bank, Thiruvananthapuram, the same got dishonoured for want of fund. The further case of the complainant before the trial court is that though notice of dishonour of the cheque amount had been issued with demand for repayment, the accused failed to repay the same, even after accepting the notice. Thus the accused alleged to have committed offence under Section 138 of the Negotiable Instruments Act.

5. The court below took cognizance of the matter and tried the matter. Earlier, as on 31.01.2006, the trial court found the accused committed offence under Section 138 of the NI Act, and he was convicted and sentenced thereunder.

6. The said conviction and sentence were taken in appeal before the Sessions Court, Thiruvananthapuram as per Crl.Appeal No.201/2006.

7. The learned Sessions Judge set aside the conviction and sentence mainly on the ground that PW1 examined in the case, who is the power of attorney holder of the original complainant, had no direct knowledge about the transaction and his evidence is only hearsay. Accordingly, the matter was remanded back to the trial court for fresh disposal.

8. After remand, the trial court examined PW1 further.

9. After questioning the accused under Section 313(1)(b) of Criminal Procedure Code, DWs 1 and 2 were examined on the side of the accused.

10. On appreciation of evidence, the learned Magistrate had acquitted the accused.

11. The learned Magistrate found that PW1, the power of attorney holder, during further examination on 26.03.2008 categorically stated that PW1 had given evidence that his deposition given on 07.10.2005 to the effect that the knowledge he had about the transaction was hearsay, is exactly true and genuine. This is the reason why the learned Magistrate acquitted the accused.

12. The learned counsel for the appellant/complainant argued that in this matter issuance of a cheque and the signature therein were admitted fact and, therefore, the complainant could very well avail benefit of presumptions under Sections 118 and 139 of the Negotiable Instruments Act. Since nothing extracted to rebut the presumption, the court below ought to have believed the version of PW1 and entered into conviction. He also submitted that in this matter, in the chief affidavit filed at the first instance itself, the power of attorney holder of the complainant given categoric averment that he had direct knowledge about the transaction.

13. He argued further that during cross examination PW1 had given evidence that the details in the complaint and the transaction between the complainant and the accused were information given by his son. However, the trial court convicted and sentenced the accused and when the matter was taken in appeal, the appellate court set aside the conviction and sentence and remanded the case for adducing fresh evidence to prove the transaction and