IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 232 OF 2009 IN STAMP NUMBER MAIN NO. 1557 OF 2009 SHRI. JOSE CHRISTOVAM PINTO THROUGH ATTORNEY RUI PINTO ... Applicant Versus MR. VERNER VELHO ... Respondent Mr. Shivan Dessai, Advocate for the Applicant. Mr. J.F.De Melo, Advocate for the Respondent. Coram:- R. M. SAVANT, J. Date:- 10th February, 2010 P.C. By the above application, the Applicant who is original complainant seeks Leave to Appeal against the judgment and order dated 21.02.2009 passed by the learned J.M.F.C.(B-Court) Panaji Goa, acquitting the accused i.e. the Respondent herein. 2. The complaint was filed by the Applicant abovenamed on account of the dishonour of the cheque bearing No.110680 dated 15.02.2003 for a sum of Rs.59,000/- which came to be dishonoured for insufficient funds on 24.4.2003. The said cheque was towards the payment of an amount of Rs. 2,59,000/- allegedly due from the accused for the construction of a plinth, and reconstruction of the walls on the banks of the river Mandovi in addition to the agreed lease amount. 3. The parties would be referred to as per their status in the Trial Court. 4. It was the case of the complainant that the partners of the firm in question had agreed to the cheque being issued by the accused in the name of the complainant abovenamed. The Criminal case went to trial and the learned J.M.F.C., by the judgment and order in respect of which leave is sought, acquitted the accused. The acquittal of the accused is inter-alia on the ground that the complaint filed by a power of attorney holder was not maintainable in view of the judgment of this Court, reported in 2008 Cri.L.J. 1509 in the matter of Joseph Creado V/s S. K. Tamisuddin, wherein it has been held in the context of Section 142 of the said Act that a power of attorney cannot be termed either as a payee of the cheque or its holder in due course. The accused has also been acquitted as the learned J.M.F.C., has come to a finding that the accused has successfully rebutted the presumption under Section 139 of the said Act. The learned J.M.F.C. has also recorded a finding that there was no service of the demand notice on the accused. 5. On behalf of the complainant, it has been contended by relying upon the judgment of the Apex Court reported in (2008)8 SCC 536 in the matter of Shankar Finance and Investments V/s State of Andhra Pradesh and others, that the judgment relied upon by the J.M.F.C. wherein it has been held that the said complaint was not maintainable at the instance of a power of attorney of an individual is no more in law in view of the judgment ( supra ) which has come after the judgment of the learned Single Judge. The learned Counsel for the Applicant submitted that since the partners had agreed to the issuance of the cheque in the name of the complainant, the complainant was a payee as envisaged in the said Act, and was therefore entitled to file a complaint and was entitled to be represented by a power of attorney holder for prosecuting the said complaint. 6. Per contra, it is submitted by the learned Counsel for the Respondent/Accused that it is in the evidence of the complainant that the debt was due to the partnership firm and, therefore, one of the partners could not file a complaint through a power of attorney holder. It is further submitted that the issue as to whether the complaint could be filed by a power of attorney holder has been kept open by the Apex Court in the said judgment ( supra ). 7. Taking the first submission advanced on behalf of the Applicant/Complainant, though it is the case of the complainant that the partnership firm had executed the alleged work in question, it is the case of the complainant that the partners had agreed to the cheque being issued in the name of the complainant abovenamed who was one of the partners. As postulated in Section 138 of the said Act, a complaint could be filed by a payee or holder in due course and since the cheque was issued in the name of the partner, he becomes a payee and would therefore be entitled to file a complaint in respect of the cheque which was issued in his name and was dishonoured. The question as regards whether the power of attorney holder could have filed the said complaint is in my view no more open in the light of the judgment of the Apex Court ( supra), the Apex Court in para 9 of the said judgment has specifically held that who should represent the payee where the payee is a proprietary concern is not a matter that is governed by Section 142, but by the general law. Therefore, in terms of the general law applicable the payee could prosecute the complaint through a power of attorney holder. 8. However, the matter does not rest here, even if the complaint is held to be maintainable at the behest of the power of attorney holder, the question which arises is whether the power of attorney holder could depose on behalf of the complainant. It has been held in the same judgment of the Apex Court ( supra ) in para 15 that the power of attorney holder of the complainant who does not have personal knowledge cannot be examined but where the attorney holder of the complainant is in charge of the business of the complainant payee and the attorney holder alone is personally aware of the transactions, and the complaint is signed by the attorney holder on behalf of the complainant payee, there is no reason why the attorney holder cannot be examined as the complainant. In the context of the said observations of the Apex Court, the evidence of the power of attorney holder becomes relevant. As indicated above, it is undisputed that the complaint was filed by the power of attorney holder. In his cross examination, he has specifically stated that the facts stated by him in the complaint were told to him by his father. Therefore, it is clear that he does not have any personal knowledge of the facts on the basis of which the complaint has been filed. It is well settled that in so far as the complainant is concerned the facts have to be proved beyond reasonable doubt, however, in so far as the accused is concerned the defence can be based on preponderance of probabilities. Since in the instant case the power of attorney holder has no personal knowledge but he is only deposing on the basis of the facts disclosed to him by his father who is the complainant, in my view, the very substratum or foundation of the case under Section 138 is absent and, therefore, edifice of the said case under Section 138 falls to the ground on the said point. 9. It is also well settled that the presumption under Section 139 is only as regards the cheque being issued in discharge of a debt or liability and that there is no presumption as regards the existence of a debt or liability. The same has to be initially proved by the complainant by leading cogent evidence. In the instant case, the power of attorney holder who has deposed is having no personal knowledge of the facts in question,in my view, the complainant has therefore failed to discharge the initial burden which was on him showing that the cheque was issued towards the existence of a debt or liability. 10. Though the Trial Court has also found fault with the complaint as regards the issuance of the notice, the said issue need not be gone into in view of what is held hereinabove, therefore, in my view the Appeal does not raise any questions of fact or law. The application for Leave to Appeal is accordingly rejected. R. M. SAVANT, J. at*