JUDGMENT A. S. Pachhapure , J.—The appellant has challenged the Judgment and Order of the Court below, granting acquittal of the respondents for the charge under Section 138 of the Negotiable Instruments Act [hereinafter called as Ã¢‚Å“The ActÃ¢‚ for short]. 2. The facts relevant for the purpose of this appeal are as under: The appellant submitted a complaint before the trial Court stating that towards discharge of the liability due and payable, the respondents issued a cheque bearing No. 146532 dated 15.07.2003 for a sum of Rs. 6,00,000-00 drawn on Central Bank, Bangalore, in the name of the appellant with a premise that on presentation of the said cheque on the due date, the same will be honoured. The presentation of the cheque was postponed on number of occasions on the request of the respondents and finally, when the appellant presented/that cheque through the banker i.e., the Syndicate Bank, Shanthinagar, Bangalore, it returned with an endorsement as accounts closed. The cheque was signed by the respondents 2 and 3 on behalf of respondent No. l, which is a firm and respondent No. 2 is the Managing Partner and respondent No.3 is the partner of the 1st respondent firm. Thus, the appellant issued a notice, calling upon the respondents to make the payment and despite the service of notice, the respondents did not comply the same. The notice sent by the registered post was returned as refused. In the circumstances, he submitted a complaint against the respondents to take action for the offence punishable under Section 138 of the Act. In response to the process issued, the respondents appeared their plea for the offence under Section 138 of the Act was recorded. The respondents pleaded not guilty and claim to be tried. The appellant examined the power of attorney holder P.W. 1 and two witnesses P.Ws. 2 and 3 and in their evidence got marked the documents Exs. P1 to 24. The statements of the respondents were recorded under Section 313, Cr. P. C. They have taken the defence of total denial. The 2nd respondent examined herself as D.W. 1 and in the evidence got marked the documents Exs. Dl to 11. The trial Court after hearing the learned counsel for the parties and on appreciation of the material on record, ordered acquittal and aggrieved by the same, the present appeal has been filed. 3. The 2nd respondent examined herself as D.W. 1 and in the evidence got marked the documents Exs. Dl to 11. The trial Court after hearing the learned counsel for the parties and on appreciation of the material on record, ordered acquittal and aggrieved by the same, the present appeal has been filed. 3. I have heard the learned counsel for the appellant and also the respondents. 4. The point that arises for my consideration is: Whether the appellant has made out any grounds to warrant the interference in the Judgment and Order of acquittal? 5. It is the contention of the learned counsel for the appellant that though the appellant examined his power of attorney as P.W. 1, his evidence is sufficient to award conviction and when the signature on the cheque was admitted by the respondents 2 and 3, there arises a presumption under Section 139 of the Act and therefore, the trial Court committed an error in granting an acquittal. So also, it is his submission that the power of attorney is valid and authorized P.W. 1 to give evidence before the Court to appear and conduct the cases etc. In the circumstances, he further submits that the evidence of P.W.1 could have been accepted in toto. On these grounds, he has sought for setting aside the acquittal and to award conviction. Per contra, the learned counsel for the respondents has supported the Judgment and Order of acquittal. 6. I have scrutinized the evidence led by the parties and also the documents admitted in evidence. 7. At the first instance, to consider the special power of attorney produced at Ex. P1, it is relevant to note that it is a special power of attorney, wherein the appellant has authorized P.W.1 to appear in the cases before the jurisdictional Court at Bangalore to conduct Negotiable Instruments Act cases, to engage advocate, to file appeal or revision, to give evidence in the Court, to file complaint, withdraw any complaint if the matter is settled outside the Court and to do all other acts necessary and incidental to the aforesaid purposes. When a special power of attorney is to be executed, the attorney has authorized to do a single act. But, Ex. P1 authorizes P.W. 1 to do many acts. When a special power of attorney is to be executed, the attorney has authorized to do a single act. But, Ex. P1 authorizes P.W. 1 to do many acts. The authority to do many acts is only under a general power of attorney and not by a special power of attorney. In the circumstances, I am of the opinion that Ex. P1 is an invalid document and P.W.1 has no authority to depose before the Court in the case. 8. Furthermore as could be seen from the complaint, there is no date, month and year, on which the loan was advanced by the appellant to the respondents. What is stated is Ã¢‚Å“towards discharge of liability due and payable by the accused, the accused persons have issued a cheque No. 146532 for a sum of Rs. 6,00,000-00 dated 15.07.2003 ......Ã¢‚. So, the appellant has not mentioned the date, month and the year of loan advanced to the respondents and in the evidence though it is stated that he is an income tax assessee, no documents have been produced to show the mention of loan advanced to the respondents in the income tax returns. 9. Furthermore, so far as the financial capacity is concerned, the appellant has not stated anything in the evidence. When he admits that he is advancing the loan to a firm, there has to be a special agreement under the partnership deed and no such agreement has been entered into between the parties. Apart from the cheque that has been produced at Ex. P11, there are no other documents to support the version of the appellant as regards the advancement of the loan. Furthermore, P.W. 1 in his evidence states that the appellant had given 2 cheques dated 31.12.1999 and 30.11.1999 produced at Exs. 19 and 20 bearing Nos. 146531 and 146530 respectively. So, these two cheque leaves of the cheque book with the numbers stated above were issued by the 1st respondent firm on the dates mentioned above i.e., in the year 1999. The cheque in question produced at Ex. Pll bears No. 146532 i.e., the next in serial number to Ex. P19, but, it is dated 15.07.2003. So, there is a gap of not less than 4 years in between the cheques Exs. P19, 20 and Ex. Pll and there arises a doubt with regard to the genuineness of the case of the appellant. 10. Pll bears No. 146532 i.e., the next in serial number to Ex. P19, but, it is dated 15.07.2003. So, there is a gap of not less than 4 years in between the cheques Exs. P19, 20 and Ex. Pll and there arises a doubt with regard to the genuineness of the case of the appellant. 10. Furthermore, the respondents have disputed the existence of a person by name Sri. J. Emmars and it is a fictitious name. When there is such a dispute, it was necessary for P.W. 1 to give the particulars of the said person and also to produce him before the Court. Despite suggestions having been made in the cross-examination of. P.W. 1 the appellant was not present at all during the proceedings. Though he has executed the power of attorney, when the identity is disputed, it was incumbent upon the appellant to appear before the Court and state about the authority having been entrusted to P.W. 1 to depose before the Court. This fact also raises a doubt with regard to issuance of the cheque by the respondents. 11. The wife of P.W. 1 is also a partner in the firm of respondent No.1. It is the case of the respondents that the wife of P.W.1 has managed to take the cheque leaves from the firm and gave them to the hands of P.W. 1, who has misused the same by filling in the blanks and taking disadvantage of the signatures on the blank cheques. This appears to be more probable only because that P.W. 1 though has impleaded respondent No. 3, a partner of the firm as the accused, has not impleaded his wife though she was a partner. So, there appears collusion between P.W.1 and his wife and that must be a reason for absence of records with regard to the handing over of the loan of Rs. 6,00,000-00. Though P.W. 1 states in his evidence that the, amount of Rs. 7,10,000-00 was paid to the respondents from his accounts maintained by him in the Times Bank, he has not produced the pass-book at least to show the debit entry in the Pass-book. If P.W. l, is the person, who paid the loan then the role of the appellant/complainant appears be doubtful. 7,10,000-00 was paid to the respondents from his accounts maintained by him in the Times Bank, he has not produced the pass-book at least to show the debit entry in the Pass-book. If P.W. l, is the person, who paid the loan then the role of the appellant/complainant appears be doubtful. The appellant is the resident of Mumbai, whereas P.W. 1 is the resident of Bangalore and is residing here since the year 1990. There is nothing in the special power of attorney or in the evidence that P.W. 1 was present with the appellant at the time when the loan of Rs. 6,00,000-00 said to have been advanced to the respondents. So, these are all suspicious circumstances brought on record by the respondents in the cross-examination of P.W.1. 12. Though the learned counsel for the appellant has relied upon the decision of the Apex Court reported in 2010 (1) DCR 706 : ( AIR 2010 SC 1898 ) [Rangappa v. Sri. Mohan] that the accused have failed to reply to the statutory notice, an adverse inference could be drawn against the complainant's version. But, as could be seen from the facts of the case, though there was no reply to the statutory notice, there is merit in the complainant—s version and apart from not, raising a probable defence, the accused was not able to contest the existence of legally enforceable debt or liability and the fact that the accused made regular payment to the complainant in relation to construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose and there was a slight discrepancy in the complainant—s version. It is under these circumstances, the accused was convicted in the case referred to supra. But, as could be seen from the facts on hand, though the cheque is said to have been issued by respondent Nos.2 and 3 to the appellant, he executes a special power of attorney to a third person, who is particularly the husband of one of the partners of respondent No. l firm. There is a specific defence in the cross-examination of the witnesses and the evidence of D.W. 1 that P.W. 1 who is the husband of the partner of the respondent, No. l firm having taken the blank cheque leaves signed, misused the same. There is a specific defence in the cross-examination of the witnesses and the evidence of D.W. 1 that P.W. 1 who is the husband of the partner of the respondent, No. l firm having taken the blank cheque leaves signed, misused the same. In the circumstances, when there was an initial burden upon this appellant to establish the liability, the said initial burden has not been discharged and therefore, a presumption under Section 139 of the Act cannot be raised. 13. Lastly, as could be seen from the cheque Ex. Pll, though respondent Nos. 2 and 3 have signed the cheque, looking into the handwriting of the signatures of both the respondents and the contents filled in with regard to the person to whom it is addressed and the amount, it appears that the handwriting filling in the blanks is different from the handwriting of respondent Nos. 2 and 3. So, this leads to an inference that the cheques were blank at the time and it must have been taken by the wife of P.W. 1 and would have been misused stating that there is such a liability. When P.W. 1 is an income tax assessee and he states that he paid an amount of Rs. 7,10, 000-00 to the respondents and even as regards the payment of Rs. 6,00,000-00, there was no difficulty for him to produce the income tax returns if really such a transaction has taken place. So, from whatsoever angle the facts are looked into, it appears that the appellant has not proved the case beyond doubt. 14. It is well established principle of law that in an appeal against the acquittal, the appellate Court will be slow in interfering with the Judgment and Order of acquittal. Even if a second view is possible, the one accepted by the trial Court cannot be disturbed. In the circumstances, I am of the opinion that the appellant has not made out any grounds to warrant interference. Hence, I answer the point in negative and proceed to pass the following: ORDER The appeal is dismissed. 15. Appeal dismissed.

J. Emmars v. Perfect Industries and Products