JUDGMENT 1. Complainant is the appellant in this appeal. The appellant has come forward with this appeal challenging the judgment dated 5.3.2004 by the learned First Additional District Judge, Salem in C.A. No. 105 of 2003 acquitting the respondent/accused in respect of offence under Section 138 of Negotiable Instruments Act, reversing the judgment dated 21.7.2003 in C.C. No. 506 of 2001 on the file of the Judicial Magistrate No. II, Salem convicting the respondent/accused in respect of an offence under Section 138 of Negotiable Instruments Act and sentencing the accused to undergo one year rigorous imprisonment and also to pay a compensation of Rs. 1,00,000/- to the complainant, viz. the appellant. 2. The following are the contents of private complaint filed by the appellant under Section 138 of Negotiable Instruments Act: The complainant is one Nagalakshmi and K.N. Venkataraman is her power of attorney holder. Before 29.6.2001, the accused obtained a loan of Rs. 1 lakh from the complainant Nagalakshmi for which he gave a cheque dated 29.6.2001 to the complainant. As requested by the accused, it was deposited in the Lakshmi Vilas Bank, Salem on 10.9.2001, but it was returned on 11.9.2011 under the reason “no sufficient funds”. Hence, she issued a notice through lawyer on 13.9.2001 but the accused refused to receive it. Hence, he is punishable under Section 138 of Negotiable Instruments Act. 3. The trial was taken up by the learned Judicial Magistrate No. 2, Salem and after analysing evidence on record, he found the accused guilty under Section 138 of Negotiable Instruments Act and sentenced him to undergo rigorous imprisonment for one year and also to pay a compensation of Rs. 1 lakh to the complainant under Section 357 Cr.P.C. The accused carried the matter in appeal in C.A. No. 105 of 2003 on the file of the First Additional Sessions Court, Salem in which on 5.3.2002, a judgment was passed allowing the appeal and acquitting the accused from the charge. Hence, this appeal has been preferred by the complainant. 4. Point for Consideration: The point for consideration is “whether the respondent is liable to be punishable under Section 138 of Negotiable Instruments Act and is also liable to pay the compensation, as directed by the trial Court?.” Point : 5. The power of attorney holder examined himself as P.W.1 and two other witnesses, the Bank Managers. 4. Point for Consideration: The point for consideration is “whether the respondent is liable to be punishable under Section 138 of Negotiable Instruments Act and is also liable to pay the compensation, as directed by the trial Court?.” Point : 5. The power of attorney holder examined himself as P.W.1 and two other witnesses, the Bank Managers. PW-1 has stated in his cross examination that Nagalakshmi is studying Chartered Accountancy; that Nagalakshmi gave one part in cash and another part by cheque; that she is not a financier; that it is incorrect to suggest that since Nagalakshmi is a student, she has not advanced loan; that in order to wreck vengeance, the the cheque given by accused to somebody else for security purpose was misused and that the accused had given cheque to one Natarajan Financier and there was a dispute in the transaction and the cheque was misused by the complainant. 6. It is in the evidence of P.W.2 who is a Branch Manager in Salem Lakshmi Vilas Bank; that the Savings Bank Account of Nagalakshmi is maintained in their bank; that the Cheque in Exhibit P-2 was deposited for collection and the same was sent to Salem Erumapalayam Canara Bank for realisation, but it was dishonoured. 7. P.W.3 is working as Branch Manager in Salem Erumapalayam Canara Bank in which the accused is having his Savings Bank Account. He says that the bank received the Cheque Exhibit P-2 on 10.9.2001 which was for Rs. 1 lakh, but on that date, the balance available in the account of the accused was Rs. 2,951/- alone and hence the cheque was returned on the reason that there was “insufficient funds”. Exhibit P-6 is the statement of accounts pertaining to the accused. P.W.3 was again recalled and examined in cross. At that time, he was confronted with Exhibit P-6 and he would say that in the account of the accused in the year 2001 between July and October, there was no transaction of collection of cheque. The trial Court Judge has appreciated the aforesaid oral evidence and recorded the findings to the effect that even though it was not stated in the evidence of PW-1 that a part of the amount was encashed and another part in cheque of Rs. The trial Court Judge has appreciated the aforesaid oral evidence and recorded the findings to the effect that even though it was not stated in the evidence of PW-1 that a part of the amount was encashed and another part in cheque of Rs. 1 lakh were given to the accused; and even if P.W.3 says that there was no transaction of collections through cheques took place in Lakhshmi Vilas bank, Salem pertaining to the account of the complainant, it could not be stated that he would be having the account in Lakhsmi Vilas bank alone and the cheque of some other branch might have been given by the complainant and it would have been encashed by the accused through some other bank. To come to this conclusion, there is no evidence on record. It is only the presumption of the trial Court. If anything is pleaded by the parties, it is on the party who urges it to prove the same initially and the other party has to rebut it as per procedure and law. 8. It is also observed in the trial Court Judgment that there is no material nor evidence to show that Exhibit P-2 cheque was delivered by the accused to one Natarajan for guarantee purpose and hence it is not believable. Further, the accused has not sent any reply to the advocate notice issued by the complainant. 9. Assuming that the accused has not encashed the cheque which was given by the complainant towards part of the loan amount, this fact can be easily proved by the complainant by giving particulars of the cheque such as date, cheque number etc., and also he can easily produce before the Court, the cheque book to show that the particular cheque was given on particular date towards the part of the loan amount. It is also observed that if a part of the loan amount was given by cheque by the complainant, it could have been proved by documentary evidence and the complainant can very well produce their bank account copy to show that part loan amount was paid through the cheque as claimed by her; and that even though she is in possession of the best evidence, she has not produced the same. 10. Further, the Appellate Court has observed that the complainant Nagalakshmi has not chosen to enter into the witness box. 10. Further, the Appellate Court has observed that the complainant Nagalakshmi has not chosen to enter into the witness box. If she were examined, accused would have got the chance to cross examine her and extract the real fact regarding the case. 11. It is the definite case of PW-1 in his cross examination that the amount of Rs. 1 lakh was advanced by his principal by cash in part and by cheque in another part. They have not mentioned how much was paid in cash and how much was the cheque amount. As observed by the appellate Court, the complainant has not produced the documentary piece of evidence with regard to payment through cheque. 12. In this context, the learned counsel Mr. Vasudevan appearing for the respondent would place reliance on the decisions of the Honourable Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde AIR 2008 SC 1325 : (2008) 4 SCC 54 : (2008) 1 MLJ (Crl) 1149 , wherein Their Lordships have dealt with the legal position with regard to the presumption available under Section 139 of the Negotiable Instruments Act. Taking into consideration, penal provisions contained in the Income Tax Act and also the consequence of non production of books of accounts to show that the source of money in the said case, it is observed that the complainant did not produce any books of accounts or any other proof to show that he got so much from the bank. The following are the procedural and statutory requirements of Section 138 of the Negotiable Instruments Act: (i) There is a legally enforceable debt. (ii) The drawer of the cheque issued the cheque to satisfy part or whole of the debt. (iii) The cheque so issued has been returned due to insufficiency of funds. 13. The following is the ratio contained in paragraph-32 of the above said decision: “An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.” The Court cannot insist or expect the accused to enter into the witness box. He has got a constitutional right to maintain silence. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.” The Court cannot insist or expect the accused to enter into the witness box. He has got a constitutional right to maintain silence. He is at liberty in law to discharge the burden upon him by the materials available in the case. 14. In paragraph-33 of the said Judgment and the earlier decision in Bharat Barrel and Drum Manufacturing Co. v. Amin Chand Payrelal AIR 1999 SC 1008 : (1999) 3 SCC 35 has been referred to in which an opinion of the Court interpreting Section 118(a) of the Act has been made and it was held that the Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. 15. Adverting to the facts of the present case, it is the stand of the complainant that part of money was given by cash and another part was given by cheque and it is for her to establish the same and it is her initial burden. In this regard, the examination or the proof on the part of the respondent is not warranted and stepping into the witness box by the respondent is not imperative. 16. In the said decision, the Honourable Supreme Court also dealt with the penal provision contained in the Income Tax Act which deals with the penal consequences of violating the provision under Section 269-SS of the Income Tax Act, wherein it is urged that any advance taken by way of any loan of more than Rs. 20,000/- was to be made by way of account payee cheque only. 17. The legal consequences which would entail penalty under Section 269-SS of the Income Tax Act are contained in Section 271 (D) of the Act. The following is the provision under 269-SS of Income Tax Act : Mode of taking or accepting certain loans and deposits. 269 SS. No person shall, after the 30.6.1984, take or accept from any other person (hereafter in this Section referred to as the depositor), any loan or deposit otherwise than by an account payee cheque or account payee bank draft if, - (a)...... (b)....... 269 SS. No person shall, after the 30.6.1984, take or accept from any other person (hereafter in this Section referred to as the depositor), any loan or deposit otherwise than by an account payee cheque or account payee bank draft if, - (a)...... (b)....... (c) the amount or the aggregate amount referred to in clause (a) together with the amount or the aggregate amount referred to in Clause (b), is (twenty) thousand rupees or more: Provided that the provisions of this Section shall not apply to any loan or deposit taken or accepted from, or any loan or deposit taken or accepted by, — (a) Government; (b) any banking company, post office savings bank or co-operative bank; (c) any corporation established by a Central, State or Provincial Act; (d) any Government or company as defined in Section 617 of the Companies Act, 1956 (1 of 1956); (e) such other institution, association or body or class of institution, association or bodies which the Central Government may, for reasons to be recorded in writing, notify in this behalf in the official gazette: (provided further that the provisions of this Section shall not apply to any loan or deposit where the person from whom the loan or deposit is taken or accepted and the person by whom the loan or deposit is taken or accepted are both having agricultural income and neither of them has any income chargeable to tax under this Act.)” The following is the provision under Section 271(D) of the Income Tax: “Penalty for failure to comply with the provisions of Section 269 SS. 271 D (1) If a person takes or accepts any loan or deposit in contravention of the provisions of Section 269SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted.) (2) Any penalty imposable under sub-section (1) shall be imposed by the (Joint) Commissioner).” Since the complainant has not come out with any particulars with regard to the quantum of part payment of loan, it could not be ascertained how much she paid in cash. In case, if it had exceeded Rs. 20,000/-, she should have complied with Section 279 SS and if it was not complied, the penal provision in Section 271 (D) would come to play. It is for the complainant to place relevant materials before the Court. In case, if it had exceeded Rs. 20,000/-, she should have complied with Section 279 SS and if it was not complied, the penal provision in Section 271 (D) would come to play. It is for the complainant to place relevant materials before the Court. But in this case, it is not done. 18. It is a defence raised by the respondent that he had delivered a cheque to a finance company in which one Natarajan was partner and the same was wrongfully used by this complainant. It is true that there is no material available on behalf of the respondent to show that the cheque was delivered for the above said purpose. But, the initial burden is upon the complainant to establish that there is a legally enforceable debt. In this context, the source of income for the complainant has to be seen. She is a student studying C.A. and there is no record to show that she is earning member. When a defence is raised in this regard, it is to be established by the complainant that she has got necessary means for advancing the loan. But it is absent in this case. Insofar as the realisation of cheque reportedly given by the complainant towards part payment of the money in one lakh, it is for the complainant to prove it. But, there is no material to conclude that a cheque was issued by the appellant to the respondent towards part payment of money. It is reiterated that it is for the complainant to say the name of the bank on which the cheque was drawn and the date of the cheque and other particulars pertaining to the cheque. Then only it could be seen that the cheque was realised by the respondent. The necessary corollary is that there is no legally enforceable debt. 19. As far as the presentation of private complaint by the Power of Attorney holder on behalf of the complainant into the Court, his signing the complaint and deposing before the Court are concerned, it is argued by the learned counsel for the respondent that the complainant should have signed in the complaint and that she should have appeared before the Court to speak about her case. In support of his contention, he placed reliance upon a decision of S.R. Singaravelu, J. in Y. Vijayalakshmi @ Rambha v. Manickam Narayanan in which after elaborately discussing the subject referring to various authorities, the learned Judge has observed thus: “55. Thus, from the above discussion it is made clear that complaint can be presented by GPA on behalf of the payee, provided, (i) the complaint shall be signed by the payee himself; (ii) there shall be also an affidavit of the complainant in proof of his execution of GPA; added to the production of the said Power of Attorney document; (iii) sworn statement of GPA can be recorded on the date of presentation of the complaint; (iv) sworn statement of payee (complainant) shall have to be taken in a future date on his appearance in Court; the Magistrate shall thoroughly examine the statements of GPA holder as well as the original complaint and documents produced before him and exercise his discretion vested under Sections 202 and 203 of Cr.P.C. The above guidelines are not exhaustive and in other circumstances the Magistrate shall exercise his discretion judiciously and in confirmity of other provisions of law applicable.” 20. Later on, M. Jeyapaul, J. has decided in a judgment in T. Muthukaruppan v. G. RaghavSn rep. by his Power of Attorney K. Gopalakrishnan (2006) 1 MLJ (Crl) 241 in which he has observed that the sworn statement of Power of the Attorney can be recorded at the very inception. Only during the course of the trial, the payee will have to come to the box and speak from his knowledge about the legal liability of the drawer, issuance of cheque, presentation of the cheque for payment, dishonour of the cheque, issuance of statutory notice, etc. , 21. Subsequently, the matter was referred to a Division Bench of this Court to settle certain issues and the solution arrived at by the Division Bench in K. Gopalakrishnan v. Karunakaran rep. by the Power of Attorney Holder Dandapani (2006) 2 MLJ (Crl) 543 is as follows: Issues: “4. The points raised in the order of reference dated 25.1.2006 made by M. Jeyapaul, J. are as follows: 1. Whether the complaint shall be signed by the power of attorney holder on behalf of the complainant? 2. by the Power of Attorney Holder Dandapani (2006) 2 MLJ (Crl) 543 is as follows: Issues: “4. The points raised in the order of reference dated 25.1.2006 made by M. Jeyapaul, J. are as follows: 1. Whether the complaint shall be signed by the power of attorney holder on behalf of the complainant? 2. Whether the production of affidavit of the complainant in proof of execution of the power of attorney in his favour is necessary? 3. Whether the sworn statement of the complainant is also required to be recorded on a future date on his appearance in the Court to enable the Court to exercise its discretion under Sections 202 and 203 of the Code of Criminal Procedure? “ Solution: “17. In view of the above discussion, we hold that (i) With regard to the first issue, the complaint even if not signed by the power of attorney on behalf of the complainant but signed in his own name, is maintainable and not bad in law because it is more procedural than substantive; (ii) regarding the second issue, though the General Power of Attorney at initial stage fails to produce the deed of power of attorney or the affidavit of the complainant in proof of execution of power of attorney, the same can be rectified by producing the same at a subsequent stage of the proceedings as and when the validity of the power of attorney is questioned by the accused and the Court could then be called upon to decide the genuineness or the validity of the power of attorney; and (iii) in respect of third issue, it is not required to record the sworn affidavit of the complainant also on a future date to enable the Court to exercise its discretion.” 22. In the light of the above, there could be no dispute with regard to the fact that filing of the complaint and examination of the Power of Attorney could be made by the Power of Attorney. 23. In view of the above said circumstances, this Court is of the view that there is no legally enforceable debt, that there is no material to show that the complainant had advanced a sum of Rs. 1,00,000/- to the respondent and that presumption under Section 139 Negotiable Instruments Act has been rebutted by the respondent. 23. In view of the above said circumstances, this Court is of the view that there is no legally enforceable debt, that there is no material to show that the complainant had advanced a sum of Rs. 1,00,000/- to the respondent and that presumption under Section 139 Negotiable Instruments Act has been rebutted by the respondent. In such a view of this matter, this Court does not find any material to interfere with the judgment by the appellate Court, which deserves to be confirmed and it is accordingly confirmed. The point is answered as indicated above. 24. In fine, the Criminal Appeal is dismissed confirming the order of the learned I Additional Sessions Judge, Salem in C.A. No. 105 of 2003 dated 5.3.2004. Appeal dismissed.