JUDGMENT

RAMENDRA JAIN, J. (ORAL) --

1. Complainant through this application under Section 378(4) Cr.P.C. has sought leave to file appeal against impugned judgment dated 02.07.2013 of the learned Sub Divisional Judicial Magistrate, Pehowa, whereby his complaint under Section 138 of the Negotiable Instruments Act (for short the 'Act') has been dismissed.

2. Briefly, in the year 2009 respondent borrowed a sum of Rs.80,000/-from the applicant-complainant and issued a cheque bearing No.195104 dated 10.04.2009 of his account in HDFC Bank, Branch Pehowa, as security. On presentation of the said cheque for encashment, the same was dishonoured by the bank with the remarks “insufficient funds” in the account of the respondent. Resultantly, applicant-complainant served registered legal notice dated 04.05.2009 Ex.C5 to the respondent vide postal receipt Ex.C4, which was received back undelivered with endorsement “unclaimed”. Consequently, within statutory period, applicant filed a complaint under Section 138 read with Section 130 of the Act against the respondent.

3. After holding trial, the trial Court dismissed complaint vide impugned judgment dated 02.07.2013 mainly on the ground that applicant-complainant in person did not appear in the witness box in person rather appeared through his mother as his general attorney. Therefore, respondent was deprived of his valuable right of cross-examining the complaint qua real transaction between them.

4. Learned counsel for the applicant-complainant placed reliance on A.C. Narayanan v. State of Maharashtra and another, 2013(4) RCR(Crl.) 306 to contend that mother of the complainant as his general attorney was competent to appear in the witness box on his behalf to prove the contents of the complaint. Trial Court failed to appreciate that mother of the complaint had appeared as CW1, after seeking due permission from the Court vide order dated 18.12.2009, whereby her application for granting permission to present the complaint as GPA of the complainant on the basis of general attorney dated 28.09.2009 and pursue the same was allowed, in view of the fact that complainant had left for abroad. Consequently, she was a competent person to file and pursue the complaint. Trial Court also failed to appreciate that there was presumption in favour of the applicant-complaint under Section 139 of the Act regarding existence of legal and enforceable debt. Though the trial Court has drawn presumption under Section 139 of the Act about existence of legal and enforceable debt was in favour of the complainant, but dismissed the complaint on cryptic ground that mother of the complainant as his GPA was not able to explain the transaction between the parties and non-appearance of the complainant had deprived the respondent of his valuable right of cross-examining the complainant, ignoring the fact that respondent has not disputed his signatures on the cheque in question and his liability. Even the respondent has not denied transaction in between him and the applicant-complainant. In his statement under Section 313 Cr.P.C. also, respondent did not deny the alleged transaction between him and the applicant-complainant, rather simply pleaded his false implication without any explanation. In support of his arguments, learned counsel also placed reliance on Don Ayengia v. State of Assam and another, 2016(3) L.A.R. 226 (SC) = 2016(1) R.C.R.(Criminal) 921 (S.C.).

5. On the other hand, learned counsel for the respondent, pleading the legality and validity of the impugned judgment, urged that at the time of drafting of affidavit of the complainant as his examination-in-chief, applicant-complainant was very much present in India. Therefore, the complainant himself ought to have appeared in the witness box to depose about the transaction between the parties. His non-appearance has taken away valuable right of the respondent to cross-examine him. Mother of the complainant did not answer certain specific question put to her about the real transaction in between the parties. Therefore, trial Court has rightly dismissed the complaint.

6. Having given thoughtful consideration to the submissions made by both the sides, I find merit in the instant application and the accompanying appeal for the reasons to follow.

7. Perusal of trial Court record shows that legal notice Ex.C5 was sent to the respondent vide postal receipt Ex.C4, but the same was received back with the endorsement “unclaimed” and not for the reason that addressee i.e. Respondent was not found residing at the given address. Careful perusal of the envelop in which legal notice was sent to the respondent shows that there is writing of the postman on it that he had informed the addressee on mobile Nos.9896228431 and 9896393685 about delivery of registered letter in his name. Therefore, it is evident on the record that the postman had brought to the notice of the respondent about legal notice, but he did not deliberately for the reasons best known to him chose to receive the same. Resultantly, legal notice Ex.C5 was returned as “unclaimed” and not on account of incomplete address of the respondent or otherwise.

8. Undisputedly, respondent did not reply to the said legal notice. Therefore, it can safely be inferred that respondent had no defence to controvert the legal notice and issuance of cheque in question by him in favour of the applicant-complainant and for that reason he did not opt to reply to the notice.

9. Respondent took pleas which can possibly be raised in a complaint case under Section 138 of the Act in defence, but could not prove any one of them. That apart, respondent to rebut presumption under Section 139 of the Act in favour of the applicant-complainant also did not lead any evidence in his defence. Even in his statement under Section 313 Cr.P.C., respondent did not deny his signature on the cheque in question and issuance of the same by him in favour of the applicant-complainant, rather simply took usual plea of his false implication which is taken in each and every criminal case.

10. In A.C.Narayanan's case (supra), Hon'ble Apex Court has held that power of attorney holder can depose and verify on oath before the Court to prove contents of a complaint under Section 138 of the Act. In the instant case, as discussed above, mother of the applicant-complainant as his general attorney, had appeared after due permission from the Court on acceptance of her application to permit her to file complaint and pursue the same as attorney. Therefore, maintainability of the complaint is well-proved on the record.

11. As far as showing ignorance by general attorney of the complainant regarding transaction between the complainant and the respondent, as has been observed by the trial Court, while dismissing the complaint on this very ground is concerned, a careful perusal of the lower Court record shows that general attorney of the applicant as CW1 was cross-examined at length and she specifically replied unambiguously to all the relevant question put to her by learned counsel for the respondent inasmuch as she specifically replied in her cross-examination that the respondent had borrowed Rs.80,000/- from her son. Her son had lent the same to the respondent in her presence at their home. She knew the respondent prior to the transaction. The cheque in question Ex.C1 was handed over by respondent to her son in her presence, denying the suggestion that no money was lent by her son to the respondent in her presence. Therefore, finding of the trial Court that mother of the applicant as his attorney could not give reply to the question with regard to transaction in between the applicant-complainant and respondent, is patently illegal.

12. Since the respondent has not denied his signature on the cheque in question, nor led any evidence in defence to this effect, therefore, applicant is granted leave to file the instant appeal. Registry is directed to allot a number to the grounds of appeal as the same has also been decided.

13. In view of the discussion made above, impugned judgment of the trial Court is set aside. Respondent is held guilty for commission of offence under Section 138 of the Act. Matter is referred back to the trial Court to afford an opportunity of hearing to the respondent on the quantum of sentence. Both the sides are directed to appear before the trial Court on19.09.2018.

14. It is clarified that in case the respondent does not appear before the trial Court on the date fixed, in that eventuality, his presence shall be procured through non-bailable warrants to undergo sentence which shall be passed against him.

15. Disposed of.

Order accordingly.

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