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2026 Supreme(Online)(HP) 1928
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J
KANTA KAPOOR – Appellant
Versus
HIM KHADI GRAMODYOG – Respondent
Cr. Appeal No. 4035 of 2013
For the Appellants/Petitioners: Ajay Sipahiya
For the Respondents: Dhanwanti
An appellate court should not disturb an acquittal unless the judgment is patently perverse. In Section 138 NI Act cases, a Power of Attorney holder must have personal knowledge of the transaction to successfully prove the complainant's case.
Headnote:(A) Criminal Appeal - Acquittal - Standard of Interference - An appellate court can interfere with a judgment of acquittal only if it is patently perverse, based on misreading or omission of material evidence, or if no reasonable person could have reached such a conclusion. (Para 12, 13)
(B) Negotiable Instruments Act - Section 138 - Power of Attorney - A complaint filed through a power of attorney is legally competent only if the attorney is conversant with the facts of the transaction; lack of personal knowledge regarding the transaction renders the testimony insufficient to prove the complainant's case. (Para 17, 18)
(C) Negotiable Instruments Act - Section 138 - Discharge of Liability - Where the agent who entered into the agreement on behalf of the accused had no authority to do so, any cheque issued cannot be considered as being issued in discharge of a legal debt or liability. (Para 19, 20)
Issues: Whether the Trial Court's judgment of acquittal was perverse and whether the evidence provided by the Power of Attorney holder was sufficient to establish a legal debt.
| Table of Content |
|---|
| 1. summary of the dispute and trial court's acquittal based on lack of agent authority. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. contentions regarding presumption of liability and maintainability of the appeal. (Para 7 , 8 , 9 , 10) |
| 3. legal threshold for interfering with a judgment of acquittal. (Para 11 , 12 , 13 , 14) |
| 4. complainant's option to file an appeal in the high court. (Para 15 , 16) |
| 5. requirement of personal knowledge for power of attorney witnesses. (Para 17 , 18) |
| 6. lack of agent authority negates the existence of a legal debt. (Para 19 , 20 , 21) |
| 7. dismissal of appeal and procedural directions for bail bonds. (Para 22 , 23 , 24) |
Rakesh Kainthla, Judge
The present appeal is directed against the judgment dated 26.03.2013 passed by the learned Judicial Magistrate First Class, Kasauli, District Solan, H.P. (learned Trial Court) vide which the respondent (accused before the learned Trial Court) was acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that plot No. 10, DIC, Industrial Area Baddi, belonged to accused No. 1. Accused No. 2 is the Chairman of accused No. 1. The complainant agreed to purchase the land. The accused failed to honour their promise and issued a cheque of ₹ 3,00,000 drawn on UCo Bank, the Mall Solan, to repay the amount. The complainuant presented the cheque to his bank, and it was sent to thoe bank of the accused. However, the bank of the accused diCshonoured the cheque with an endorsement ‘payment stopped by drawer’. The complainant served a legal notice upon the accused asking them to pay the amount. The notice was duly served upon the accused, but they failed to pay the H amount. Hence, a complaint was filed before the learned Trial Court for taking action as per the law.
3. Learned Trial Court found sufÏcient reasons to summon the accused. When the accused appeared, a notice of accusation was put to accused no. 2 for the commission of an offence punishable under Section 138 of the NI Act, to which he pleaded not guilty and claimed to be tried.
4. The complainant examined Puneet Kapoor (CW1), his special Power of Attorney, to prove his complaint.
5. Accused No. 2, in his statement recorded under Section 313 of Cr.P.C., denied the complainant’s case in its entirety. He stated that he had issued one cheque of ₹ 3 lakh and another cheque of ₹ 1,50,000 to the complainant at the instance of Devender Mohan. The cheques were taken after practicing fraud. He examined Braham Dass (DW1), Mukesh Kumar (DW2), Virender Kumar (DW3), Baldhari Singh (DW4) and LC Khemi Devi (DW5) to prove his defence.
6. Learned Trial Court held that the complainant had agreed to purchase the plot from Devender Mohan, who had resigned in 1996, and an advertisement of resignation was published in the daily newspapers, Indian Express and Jansatta. Therefore, Devender Mohan had no authority to enter into any agreement on behalf of accused No. 1. The cheque issued by the accused could not be said to be issued in discharge of debt/liability. The defence taken by the accused was probable. Hence, the learned Trial Court acquitted the accused.
7. Being aggrieved by the judgment passed by the learned Trial Court, the successors of the complainant have filed the present appeal asserting that the learned Trial Court had erred in acquitting the accused. The accused admitted his signature on the cheque, and a presumption arose that the cheque was issued for consideration for discharging the debt/liability. Learned Trial Court did not consider the presumption. Therefore, it was
