A power of attorney holder must have personal knowledge of the transaction to provide valid testimony in cheque dishonor cases.

JUDGMENT

This appeal has been preferred by the complainant in S.T.C.No.1796 of 2011 on the file of the Judicial First Class Magistrate Court-I, Kannur, challenging the judgment of acquittal rendered in the said case, dated 12.07.2013, alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act (for short “N.I. Act”). For the sake of convenience and clarity, the parties in this appeal are herein after referred to as the complainant and the accused.

2. The case of the complainant in brief is as follows;

The 1st accused is a partnership firm, and the 2nd and 3rd accused are its Managing Partner and Partner, respectively. Accused Nos.2 and 3 had engaged in business dealings with the complainant pursuant to an agreement dated 18.04.2009. Thereafter, the 2nd and 3rd accused committed default in paying the amounts due to the complainant arose in their business transaction. As on 31.01.2010, the accused were liable to pay an amount of Rs.19,08,808/- to the complainant. Thereafter, towards the partial discharge of the said liability, the accused Nos.2 and 3 issued a cheque dated 14.04.2010 drawn on the account maintained by the accused with Axis Bank Limited, Kannur branch. At the time of the issuance of the cheque, accused Nos.2 and 3 assured that if the cheque is presented on or after 05.10.2010, it would be honoured. Relying on the assurance, the complainant sent the cheque for collection through her account maintained at Federal Bank Limited, Kannur branch. However, the cheque was returned unpaid, stating the reason “funds insufficient”. Thereafter, the complainant issued a notice to the accused, intimating the dishonor of the cheque and demanding the payment of the cheque amount. Though the said notice was duly served on the accused, no payment was made. Instead, the accused sent a reply raising false and frivolous contentions. Hence, the accused are alleged to have committed an offence punishable under Section 138 of N.I. Act.

3. The complaint in this case was filed by the complainant through her power of attorney holder. During trial, the power of attorney holder of the complainant was examined as PW1 and Exts. P1 to P7 were marked. On the side of the accused, Exts.D1 to D6 were marked.

4. After consideration of the oral and documentary evidence on record and after hearing both sides, the trial court by judgment dated 12.07.2013 found the accused not guilty of the offence punishable under Section 138 of N.I. Act, and accordingly acquitted them. Aggrieved by the said finding and order of acquittal, the complainant has preferred this appeal.

5. I heard the learned counsel appearing for the appellant, the learned counsel appearing for the 1st respondent, and the learned Senior Public Prosecutor.

6. The learned counsel for the appellant would submit that the trial court acquitted the accused in a hasty and unjustified manner without properly appreciating the facts and evidence brought on record. According to the counsel, the trial court wrongly entered into a finding that the power of attorney holder who tendered evidence in this case on behalf of the complainant did not have any personal knowledge regarding the transaction in this case, and his evidence is not sufficient to prove the alleged transaction. According to the counsel, as the execution of Ext.P2 cheque was duly proved, the trial court ought to have found that the complainant had succeeded in establishing the basic facts to draw a presumption under Section 139 of N.I. Act. The learned counsel urged that, since the accused miserably failed to rebut the said statutory presumption, they are liable to be found guilty and convicted. Per contra, the learned counsel for the respondent submitted that the complainant miserably failed to prove her case. The counsel further urged that the