ORDER : 1. This revision petition is directed against the judgment dated 24.08.2017 passed in Crl.A.No.608/2015 by the LXVI Additional City Civil and Sessions Judge, Bangalore City where under the judgment of conviction dated 26.03.2015 passed in C.C.No2430/2009 by the XVIII ACMM, Bengaluru convicting the petitioner for the offence punishable under Section 138 of the N.I.Act and sentenced to pay fine of Rs.25,30,000/- and in default to undergo simple imprisonment for one year has been affirmed. 2. Heard learned counsel for the petitioner and learned counsel for the respondent. 3. It was the case of respondent - complainant before the trial Court that petitioner - accused has negotiated with the respondent - complainant to purchase the complainant’s property situated at Kattigenahalli Village, Jala Hobli, Bangalore North Taluk for a total consideration of Rs.1.10 Crores. In pursuance of the contract, an agreement of sale was got executed and registered on 05.07.2007 and the complainant has executed power of attorney in favour of sons of accused R.Prakash and R.Somesh. At the time of execution of GPA, the petitioner - accused has expressed his financial constraints and sought for hand loan of Rs.35,00,000/- from the complainant. Accused promised to repay the said amount within 23 months. The complainant believed the words of accused and advanced Rs.35,00,000/- as hand loan to the accused. In order to repay the amount borrowed the accused said to have issued four post dated cheques in favour of the complainant dated 05.09.2007 for Rs.10,00,000/- and Rs.5,00,000/- and another two cheques dated 05.10.2007 for Rs.10,00,000/- each drawn on State Bank of Mysore, HRBR Layout Branch, Bangalore. During August 2007 the accused had requested the complainant to present the cheques in the month of march 2008. The complainant presented cheque Nos.954076 and 954077 issued for Rs.10,00,000/- and Rs.5,00,000/- and as per memo dated 04.03.2008, both the cheques were returned with endorsement “funds insufficient.” The complainant has also presented other two cheques bearing Nos.954078 and 954079 dated 05.10.2007 and the said cheques were returned unpaid as per memo dated 15.03.2008 with endorsement “funds insufficient.” The accused has requested the complainant to re-present the cheque No.954078 for Rs.10,00,000/- and agreed to pay remaining cheque amount by cash. The complainant got issued legal notice to the accused dated 31.03.2008 calling upon him to pay the amount of cheques. The complainant got issued legal notice to the accused dated 31.03.2008 calling upon him to pay the amount of cheques. The said notice has been returned to the complainant with an endorsement “unclaimed.” The accused has not paid the amount of cheques within 15 days. Therefore, the complainant initiated proceedings against the petitioner for the offence punishable under Section 138 of the N.I.Act. 4. The complainant has been examined as PW.1.Thereafter he did not appear for cross-examination due to his ill-health. Thereafter, the complainant has executed special power of attorney in favour of his daughter-in-law and she has been examined as PW.2 and got marked Exs.P1 to P13. The statement of the accused has been recorded under Section 313 of Cr.P.C. Exs.D1 to D8 have been got marked in the cross-examination of PW.2. The accused has not entered the witness box to lead defence evidence. The learned Magistrate after hearing both sides and appreciating the evidence on record has convicted the petitioner for the offence under Section 138 of the N.I.Act and sentenced to pay fine of Rs.25,30,000/- and in default to undergo simple imprisonment for one year. The said judgment of conviction has been challenged by the petitioner-accused before the Sessions Court in Crl.A.No.608/2015. The Sessions Court dismissed the said appeal on merits and affirmed the judgment of conviction and order of sentence passed by the trial Court. 5. Learned counsel for the petitioner contended that PW.2, the special power of attorney holder of the complainant has no personal knowledge of the transaction. PW.2 has not stated in her chief examination regarding her personal knowledge of the transaction. The contents of affidavit filed in lieu of examination-in-chief are same to that of contents of affidavit of PW.1. There is no mention in Ex.P13, the special power of attorney regarding knowledge of special power of attorney holder of the transaction. The said power of attorney has been executed on 18.10.2012 and thereafter the complainant has filed written statement in O.S.No.3878/2014 on 29.10.2014 (Ex.D3), that itself indicate that complainant was hale and healthy to give evidence. The complainant under Ex.D4 – sale agreement has received Rs.40,00,000/- by way of cash from the petitioner-accused. The execution of Ex.D4 – sale agreement has been admitted by PW.2 in her cross- examination. The complainant under Ex.D4 – sale agreement has received Rs.40,00,000/- by way of cash from the petitioner-accused. The execution of Ex.D4 – sale agreement has been admitted by PW.2 in her cross- examination. Lending of Rs.40,00,000/- on the same day of agreement i.e. on 05.07.2007 and a sum of Rs.35,00,000/- by cash is doubtful since on the same day accused has paid cash of Rs.40,00,000/- to the complainant. Apart from that the complainant has received Rs.10,00,000/- by way of cheque bearing No.954078 and the same has been mentioned in receipt – Ex.D6 dated 06.06.2008. In the said Ex.D6, there is mention regarding transaction pertaining to land bearing Sy.No.28. The suit filed by the petitioner - accused in O.S.No.3878/2014 has been decreed for a sum of Rs.50,00,000/- against the respondent - complainant. 6. Learned counsel on the point of power of attorney holder has placed reliance on the decision of Hon’ble Apex Court in the case of A.C. Narayanan and others vs. State of Maharashtra and others, AIR 2014 SC 630 . Learned counsel for the petitioner placing reliance on the cross-examination of PW.2 has contended that he has rebutted the presumption drawn under Section 139 of the N.I.Act. On the point of presumption he has placed reliance on the decision of Hon’ble Apex Court in the case of Basalingappa vs. Mudibasappa, (2019) 5 SCC 418 and Kumar Exports vs. Sharma Carpets, AIR 2009 SC 1518. He further contended there was a written sale agreement on 05.07.2007 which is at Ex.D4 and on the same day borrowing hand loan of huge amount of Rs.35,00,000/- in cash without any documents is unbelievable. Even on the same day, i.e. on 05.07.2007, the complainant has executed the registered power of attorney in favour of two sons of complainant and the same has been admitted by PW.2 in her cross-examination and there is also averment of the same in the complaint. He contends that as the legal notice has not been personally served on the petitioner – accused, he could not give any reply to the same. He contends that as the presumption is rebutted, it is for the complainant to prove the transaction by giving cogent evidence. The evidence on record does not establish the transaction of borrowing of Rs.35,00,000/- by this petitioner - accused from the complainant. He contends that as the presumption is rebutted, it is for the complainant to prove the transaction by giving cogent evidence. The evidence on record does not establish the transaction of borrowing of Rs.35,00,000/- by this petitioner - accused from the complainant. Without considering all these aspects, the learned trial Judge has convicted the petitioner and the learned Sessions Judge has not re-appreciated the evidence on record properly. 7. Learned counsel for the respondent would contend that notice has been sent to petitioner by RPAD and also under certificate of posting. Even though notice sent by RPAD returned as “unclaimed”, the notice sent under certificate of posting has been served on the petitioner-accused and there is no reply to the said notice. The petitioner - accused has admitted cheques Exs.P1 to P3. Against the decretal of the suit filed by the petitioner – accused, respondent has filed miscellaneous case seeking setting aside the exparte decree. Along with Ex.P13, the special power of attorney, medical certificate of complainant has been enclosed wherein it is stated that complainant due to accident is not able to take delicate decisions. PW.2 – the special power of attorney holder of complainant is his daughter-in-law and she has personal knowledge. On perusal of cross-examination of PW.2 it indicates that she was present at the time of transaction and she has personal knowledge of the transaction. If the complainant is sick or he dies, his LRs can prosecute the complaint. He submits that power of attorney holder has personal knowledge and she can give evidence on behalf of the complainant. He has placed reliance of Hon’ble Apex Court in A.C. Narayanan (supra) on that point. He also placed reliance on the decision of the co-ordinate Bench of this Court in the case of H.N. Nagaraj vs. Suresh Lal Hiralal, MANU/KA/4604/2022. On the same point he has placed reliance of the Division Bench of this Court in the case of Jimmy Jahangir Madan vs. Bolly Cariyappa Hindley and others, ILR 2001 KAR 5401. As the issuance of cheques is admitted, the presumption has to be drawn under Section 139 of the N.I.Act that cheques are issued for discharge of debt. The said presumption has not been rebutted by the petitioner - accused. There is no mention of issuing cheques as security in the sale agreement – Ex.D4 and that itself indicate that defence is false. The said presumption has not been rebutted by the petitioner - accused. There is no mention of issuing cheques as security in the sale agreement – Ex.D4 and that itself indicate that defence is false. The fact that accused has got one of four cheques among four dishonoured cheques on second presentment itself indicate that all the four cheques are issued for making repayment of money borrowed. On the point of presumption, the learned counsel has placed reliance on the decision of Hon’ble Apex Court in Bir Singh vs. Mukesh Kumar, MANU/SC/0154/2019. He submits that considering all these aspects the learned Magistrate has rightly convicted the petitioner for the offence under Section 138 of the N.I.Act and the Sessions Judge rightly dismissed the appeal filed by the petitioner - accused. 8. Having heard the learned counsels, this Court has perused the impugned judgments and the trial Court records. 9. The Hon’ble Apex Court in A.C. Narayanan (supra) has held as under: “19. As noticed hereinabove, though Janki Vashdeo Bhojwani (supra), relates to powers of Power of Attorney holder under Code of Civil Procedure but it was concluded therein that a plaint by a Power of Attorney holder on behalf of the original plaintiff is maintainable provided he has a personal knowledge of the transaction in question. In a way, it is an exception to a well settled position that criminal law can be put in motion by anyone [vide Vishwa Mitter (supra)] and under the Statute, one stranger to transaction in question, namely, legal heir etc., can also carry forward the pending criminal complaint or initiate the criminal action if the original complainant dies [Vide Ashwin Nanubhai Vyas vs. State of Maharashtra, MANU/SC/0101/1966 : (1967) 1 SCR 807 ]. Keeping in mind various situations like inability as a result of sickness, old age or death or staying abroad of the payee or holder in due course to appear and depose before the Court in order to prove the complaint, it is permissible for the Power of Attorney holder or for the legal representative(s) to file a complaint and/or continue with the pending criminal complaint for and on behalf of payee or holder in due course. However, it is expected that such power of attorney holder or legal representative(s) should have knowledge about the transaction in question so as to able to bring on record the truth of the grievance/offence, otherwise, no criminal justice could be achieved in case payee or holder in due course, is unable to sign, appear or depose as complainant due to above quoted reasons. Keeping these aspects in mind, in MMTC (supra), this Court had taken the view that if complaint is filed for and on behalf of payee or holder in due course, that is good enough compliance with Section 142 of N.I. Act. 26) While holding that there is no serious conflict between the decisions in MMTC (supra) and Janki Vashdeo Bhojwani (supra), we clarify the position and answer the questions in the following manner: (i) Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent. (ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions. (iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case. (iv) In the light of Section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. (v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.” 10. (v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.” 10. The co-ordinate Bench of this Court in H.N. Nagaraj (supra) has held as under: 12. Answer to Point No.2: Whether the sworn statement of the Special Power of Attorney holder could be recorded in a proceeding under Section 138 of N.I.Act? 12.1. Para 33 of the decision of the Hon’ble Apex Court in A.C. Narayanan’s MANU/SC/0934/2013 : (2014) 11 SCC 790 case has been reproduced hereinabove. 12.2. In terms of Para 33.1 of A.C. Narayanan’s MANU/SC/0934/2013 : (2014) 11 SCC 790 case, it is clear that a complaint under Section 138 of N.I.Act can be filed through a power of attorney. In the present case, the complaint has been filed by a Special Power of Attorney, which is sufficient compliance. 12.3. In terms of para 33.2 of A.C. Narayanan’s MANU/SC/0934/2013 : (2014) 11 SCC 790 case, a power of attorney could depose and verify on oath and prove the contents of the complaint which has been done. 12.4. The power of attorney holder being a witness to the transaction as an agent is a matter which has been averred in the complaint but the veracity of the same would always be subject to cross-examination in the proceedings. In the event of the accused being able to establish that the power of attorney does not know the transactions and/or that the deposition given is not correct or false, the accused could always succeed in the said matter. At the stage of filing of an affidavit or recordal of sworn statement it cannot be said or decided as to whether the power of attorney is aware of or not of the transactions. 12.5. In terms of para 33.3 of A.C. Narayanan’s MANU/SC/0934/2013 : (2014) 11 SCC 790 case, what is required is for a specific assertion to be made that the power of attorney is aware of the transactions. In the present case, such an assertion has been made. 12.5. In terms of para 33.3 of A.C. Narayanan’s MANU/SC/0934/2013 : (2014) 11 SCC 790 case, what is required is for a specific assertion to be made that the power of attorney is aware of the transactions. In the present case, such an assertion has been made. Be that as it may, during the course of cross-examination if it is established that the power of attorney holder has no knowledge regarding the transaction, then the complaint itself would fail and it is the risk which has been taken by the complainant by appointing power of attorney holder. 12.6. In view of the above, I answer Point No.2 by holding that a power of attorney could file a complaint, could depose to an affidavit as also record his sworn statement in a proceedings under Section 138 of N.I.Act. 11. The Division Bench of this Court Jimmy Jahangir Madan (supra) has held as under: “15. In our opinion, a probate is not necessary to prosecute a criminal complaint as L.Rs of the complainant. The question is who is competent to prosecute the complaint after the death of the complainant and whether the L.Rs are entitled to prosecute the complaint. In these cases, applications were made by the power of attorney under Section 302(1) Cr.P.C. only and the main objection was that the application was not filed under Section 302(2) Cr.P.C. After perusal of various provisions of the Code and Section 142 of the N.I.Act, we answer the points referred to us as follows: (1) The complaint filed under Section 200 Cr.P.C. or under Section 142 of the N.I.Act would not ipso facto terminate or abate upon the death of the complainant. (2) In a proceeding initiated under Section 142 of the N.I.Act, on the death of the complainant, his L.Rs. their agents or power of attorney holder could be permitted to prosecute the complaint under Section 302(2) Cr.P.C. or under Section 142 of the N.I.Act. (3) An agent or a power of attorney holder of payee of cheque or holder in due course may be permitted to prosecute the complaint unless there is a specific bar in the Code for such persons to lodge the complaint. But once the complaint is filed by the aggrieved persons, the prosecution can be continued by the interested persons or persons named above. 16. But once the complaint is filed by the aggrieved persons, the prosecution can be continued by the interested persons or persons named above. 16. Before parting with this case, we may add that no provision of law should be construed so as to defeat the purpose of the Act on technicalities. It is desirable in a case of this nature for L.Rs of the deceased to come on record and prosecute the complaint in person, if possible. In the event of any disability, they may seek the permission of the Court to prosecute such complaint through their agent or power of attorney. If such applications are made, the Criminal Courts shall consider it on merits and pass appropriate orders as required under Section 302(2) Cr.P.C. or under Section 142 of the N.I.Act. 12. Considering the law laid down in the aforesaid decision it is clear that if a power of attorney is having personal knowledge of the transaction can give evidence on the behalf of complainant. It is also clear that if the complainant is disabled/sick, the complaint can be prosecuted through the agent or power of attorney holder. On close reading of cross-examination of PW.2, it is clear that she is having personal knowledge of the transaction as averred in the complaint. Considering the said aspect PW.2, special power of attorney holder can give her evidence on behalf of respondent - complainant. 13. The Hon’ble Apex Court in Basalingappa (Supra) has held as under: 25. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:- 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence. 14. The Hon’ble Apex Court in Bir Singh (Supra) has held as under: “36. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act.” 15. Considering the above decisions, it is clear that if the cheque is admitted presumption has to drawn under Section 139 of the N.I.Act that cheque is issued for discharge of debt. The said presumption under Section 139 is rebuttable presumption. The standard of proof for rebutting the said presumption is that of preponderance of probability. 16. It is the defence of petitioner - accused that four cheques are issued as a security for payment of balance amount under sale agreement dated 05.07.2007 (Ex.D4). PW.2 in her cross-examination has admitted that there was a transaction between the complainant and accused on 05.07.2007 and the complainant has executed sale agreement on 05.07.2007. PW.2 has also admitted that on 05.07.2007 complainant has executed power of attorney in favour of two sons of accused. Ex.D4 has been marked in the cross-examination of PW.2 when she admitted that her father-in-law - complainant and accused have entered into an agreement on 05.07.2007. Even PW.2 has admitted that her husband and one Siddesh have affixed their signature on Ex.D4. Ex.D4 has been marked in the cross-examination of PW.2 when she admitted that her father-in-law - complainant and accused have entered into an agreement on 05.07.2007. Even PW.2 has admitted that her husband and one Siddesh have affixed their signature on Ex.D4. Under Ex.D4 – sale agreement there is mention of payment of Rs.40,00,000/- by cash as earnest money towards purchase of schedule property. The said sale agreement is dated 05.07.2007. The transaction in the present case is also on 05.07.2007. As per the averments in Ex.D4 – sale agreement, the petitioner - accused has paid cash of Rs.40,00,000/- as earnest money towards purchase of schedule property to the respondent - complainant and there was balance of sale consideration of Rs.78,12,500/-. The date of borrowing as per complainant is 05.07.2007 and date of sale agreement-Ex.D4 is also 05.07.2007. It is not the case of complainant that on 05.07.2007 he entered into agreement with the accused and received Rs.40,00,000/- and as accused pleaded his financial difficulty he lent Rs.35,00,000/- out of it to the accused. On the very same day i.e. 05.07.2007 complainant has executed special power of attorney in favour of sons of accused and the same has been stated in the averments of complaint and evidence of PW.2. The value of four cheques stated to have been issued by the petitioner - accused is Rs.35,00,000/-. The balance sale consideration to be paid by the accused under Ex.D4 – sale agreement is Rs.78,12,500/-. The trial Court and the appellate Court have disbelieved the said defence of the accused only on the ground that when there is balance of Rs.78,12,500/-, the four cheques are issued only for Rs.35,00,000/-. Even though there is balance of Rs.78,12,500/-, the agreement holder may issue cheques for lesser amount than the balance due as a security for payment of balance amount. PW.2 has admitted that her husband Dr.Sanjay is a witness in Ex.D4 – sale agreement. The said Dr.Sanjay, husband of PW.2 and son of complainant ought to have been examined as he was having full knowledge of transaction between the complainant and the accused. In Ex.D6-receipt issued by the complainant it is stated that he received Rs.10,00,000/- towards cheque No.954078 dated 05.10.2007. In Ex.D6 there is a mention that the amount of Rs.10,00,000/- received by the complainant is regarding land No.(survey) 28 (450)P6. In Ex.D6-receipt issued by the complainant it is stated that he received Rs.10,00,000/- towards cheque No.954078 dated 05.10.2007. In Ex.D6 there is a mention that the amount of Rs.10,00,000/- received by the complainant is regarding land No.(survey) 28 (450)P6. The complainant has disputed receipt of Rs.10,00,000/- from the accused which is the amount under cheque No.954078. There is another Deed of conveyance stated to have been executed by the complainant in favour of two sons of accused dated 14.10.2007 which is at Ex.D5. To the said Deed of Conveyance Dr.Sanjay, husband of PW.2 and son of complainant is a witness and the same has been admitted by PW.2. The said Sanjay has not been examined. Ex.D7 and D8 indicate that owner of property bearing Sy.No.28 measuring two acres have initiated proceedings against the complainant under PTCL Act for restoring the land sold by them to the complainant and the same has been allowed by order dated 01.04.2008. It is the said property bearing Sy.No.28 which is the subject matter of sale agreement – Ex.D4 and Deed of Conveyance – Ex.D5. Considering all these aspects it is clear that the defence set up by the petitioner - accused is probable. Even though huge amount of Rs.35,00,000/- is stated to be lent by way of cash on 05.07.2007, there is no document in that regard even though on that day there was registered GPA executed by the complainant in favour of sons of accused and sale agreement Ex.D4. Considering these aspects the petitioner has rebutted the presumption drawn under Section 139 of the N.I.Act. As the presumption is rebutted, the complainant has to establish the transaction. Except the said three cheques no other materials are placed on record to establish the transaction of the accused borrowing Rs.35,00,000/- from the complainant on 05.07.2007. Considering these aspects, the learned Magistrate has erred in convicting the petitioner - accused for the offence punishable under Section 138 of the N.I.Act. The appellate Court also has not re-appreciated the evidence on record properly and erred in confirming the conviction passed by the trial Court. Considering all these aspects, the impugned judgment passed by the trial Court and the appellate Court requires to be set-aside and accused is required to be acquitted for the offence punishable under Section 138 of the N.I.Act. In view of the above, the following: ORDER : i) The revision petition is allowed. Considering all these aspects, the impugned judgment passed by the trial Court and the appellate Court requires to be set-aside and accused is required to be acquitted for the offence punishable under Section 138 of the N.I.Act. In view of the above, the following: ORDER : i) The revision petition is allowed. ii) The impugned judgment of conviction and order of sentence dated 26.03.2015 passed in C.C.No2430/2009 passed by the XVIII ACMM, Bengaluru is set-aside. iii) The judgment dated 24.08.2017 passed in Crl.A.No.608/2015 by the LXVI Additional City Civil and Sessions Judge, Bangalore City affirming the judgment of conviction passed by the trial Court is also set-aside. iv) The petitioner - accused is acquitted for the offence under Section 138 of the N.I.Act. v) The petitioner/his LRs are entitled to refund of amount deposited by them.