A Power of Attorney Holder may testify in a cheque dishonour case even if not named in the witness schedule, provided they have direct knowledge of the transaction.

JUDGMENT :

A. BADHARUDEEN, J.

1. Judgment in S.T. No.152/2012 dated 31.12.2014 on the files of the Judicial First Class Magistrate Court-II, Karunagappally, is under challenge in this appeal at the instance of the complainant. The sole accused before the trial court is the 1^st respondent herein and State of Kerala represented by Public Prosecutor is the 2^nd respondent.

2. Heard the learned counsel for the appellant/complainant, the learned counsel for the 1^st respondent as well as the learned Special Public Prosecutor appearing for the 2^nd respondent, in detail. Perused the trial court records and the judgment under challenge.

3. The parties in this appeal will be referred hereafter with reference to their status before the trial court as `the complainant’ and `the accused’.

4. On dishonour of a cheque dated 05.03.2011 for Rs.2,50,000/-, alleged to be issued by the accused to the complainant, the complainant launched prosecution alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (`N.I Act’ for short hereinafter), by the accused. The trial court proceeded with trial and recorded the evidence. PW1 was examined and Exts.P1 to P7 were marked on the side of the complainant. No defense evidence was adduced.

5. On appreciation of the evidence, the learned Magistrate acquitted the accused on the finding that the accused did not commit the offence under Section 138 of the N.I Act. It is pointed out by the learned counsel for the complainant that though PW1 examined in this case is the power of attorney holder of the complainant and he had direct knowledge regarding the transaction, his evidence was rejected by the learned Magistrate on the ground that, in the preliminary witness schedule filed along with the complaint, the name of PW1 was not cited. Secondly, no evidence was adduced by the complainant to show that the complainant had Rs.2,50,000/- in his hands to advance to the accused, as contended. It is submitted by the learned counsel for the appellant that, in fact, the financial capacity of the complainant or the source of the money not at all disputed by the accused. According to the complainant, these reasons are insufficient to record acquittal. Therefore he pressed for interference in the verdict impugned.

6. Whereas the learned counsel for the accused/1^st respondent supported the trial court verdict and submitted that no evidence was adduced by the complainant to prove the transaction which led to the execution of Ext.P1 cheque and, therefore, the verdict would only be liable to be sustained.

7. In consideration of the rival submissions, the points arise for consideration are:

(i) Whether the trial court went wrong in finding that the accused did not commit any offence under Section 138 of the N.I Act?

(ii) Is it necessary to interfere with the judgment impugned in any manner?

(iii) The order to be passed?

Points (i) to (iii)

8. In this case, in order to prove the transaction and execution of Ext.P1 cheque by the accused in favour of the complainant, one Dinesh Lal, the Power of Attorney Holder of the complainant, was examined as PW1. He filed chief affidavit in support of the prosecution case and his evidence is that he was a close friend of the complainant and he had witnessed the transaction involved in this case and he had full and complete knowledge regarding the transaction which led to execution of Ext.P1 cheque. He also deposed about his involvement in chitty business. It was through him, Ext.P1, the original cheque and Ext.P2 dishonour memo, Ext.P3 cheque return memo, Ext.P4 Advocate notice, Ext.P5 postal receipt, Ext.P6 postal acknowledgment card and Ext.P7 Po