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2026 Supreme(Online)(HP) 1929
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J
KANTA KAPOOR – Appellant
Versus
HIM KHADI GRAMODYOG – Respondent
Cr. Appeal No. 4036 of 2013
For the Appellants/Petitioners: Ajay Sipahiya
For the Respondents: Dhanwanti
An appellate court should not disturb an acquittal unless the trial court's view is perverse. In NI Act cases, a Power of Attorney holder must have personal knowledge of the transaction to prove the complainant's case.
Headnote:(A) Appeal against Acquittal - Standard of Interference - Interference with a finding of acquittal is warranted only if the judgment 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 - Power of Attorney - A complaint filed through a power of attorney is legal, provided the attorney is conversant with the facts of the transaction and such knowledge is explicitly asserted in the complaint; absence of personal knowledge renders the testimony insufficient. (Para 17, 18)
(C) Maintainability of Appeal - Forum - A victim/complainant has the option to prefer an appeal against acquittal either before the High Court or the Court of Sessions. (Para 15)
Issues: Whether the Trial Court's judgment of acquittal under Section 138 of the NI Act was perverse and warranted interference by the Appellate Court.
| Table of Content |
|---|
| 1. summary of the cheque dishonour case and the trial court's acquittal based on lack of agent authority. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. arguments regarding the presumption of liability and the maintainability of the appeal. (Para 7 , 9 , 10) |
| 3. legal standard for reversing a judgment of acquittal. (Para 11 , 12 , 13 , 14) |
| 4. complainant's option to file an appeal in either the high court or sessions court. (Para 15 , 16) |
| 5. requirement of personal knowledge for a power of attorney holder to be a competent witness. (Para 17 , 18) |
| 6. lack of authority of the agent to enter into agreements negates the discharge of legal liability. (Para 19 , 20 , 21) |
| 7. dismissal of the appeal and directions for bail bonds. (Para 22 , 23 , 24) |
Whether approved for reporting? 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. No
Rakesh Kainthla, Judge
The present appeal is directed against the judgment H 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 ₹ 1,50,000/- drawn on UCO Bank, the Mall Solan, to return the amount paid uby the complainant. The complainant presented the chequeo to his bank, and it was sent to the bank of the accused. HoCwever, the bank of the accused dishonoured the cheque with an endorsement ‘insufÏcient funds’. The complainant served a legal notice upon the accused asking them to pay the amount. The notice was duly returned with an H endorsement unclaimed, which is a deemed service. The accused failed to pay the 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. The accused, 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 practising fraud. He examined Braham Dass (DW1), Mukesh Kumar (DW2), Virender Kumar (DW3) and Baldhari Singh (DW4) 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. The public was also informed of the resignation by issuing an advertisement in the daily newspapers, Indian Express and Jansatta. 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
