(i) Whether a Power of Attorney holder can sign and file a complaint petition behalf of the complainant? Whether the eligibility criteria prescribed by Section 142(a) of NI Act would stand satisfied if the complaint petition itself is filed in the name of the payee or the holder in due course of the cheque?
(ii) Whether a Power of Attorney holder can be varied on oath under Section 200 of the Code?
(iii) Whether specific averments as to the knowledge of the Power of Attorney holder in the impugned transaction must be explicitly asserted in the complaint?
(iv) If the Power of Attorney holder fails to assert explicitly his knowledge in the complaint then can the Power of Attorney holder verify the complaint on oath on such presumption of knowledge?
(v) Whether the proceedings contemplated under Section 200 of the Code can be dispensed with in the light of Section 145 of the N.I. Act which was introduced by an amendment in the year 2002?
JUDGMENT
(ii) Whether a Power of Attorney holder can be varied on oath under Section 200 of the Code?
(iii) Whether specific averments as to the knowledge of the Power of Attorney holder in the impugned transaction must be explicitly asserted in the complaint?
(iv) If the Power of Attorney holder fails to assert explicitly his knowledge in the complaint then can the Power of Attorney holder verify the complaint on oath on such presumption of knowledge?
(v) Whether the proceedings contemplated under Section 200 of the Code can be dispensed with in the light of Section 145 of the N.I. Act which was introduced by an amendment in the year 2002?
(SUDHANSU JYOTI MUKHOPADHAYA
AND S.A. BOBDE, JJ.)
Appellant
VERSUS
Respondents
Appellant
VERSUS
Respondents
Criminal Appeal No.73 of 2007
with Criminal Appeal No.1437 of 2013-Decided on 28-1-2015.
(A) Negotiable Instruments Act, 1881, Sections
138 and 142(a) - Criminal Procedure Code, 1973, Section 190(1)(a) - Dishonour
of Cheque - Complaint - Power of Attorney Holder - Cognizance of offence - Taking of by
Magistrate - Without prima facie establishing the fact as to whether the Power
of Attorney existed in first place and whether it was in order - Complaint
against the appellant was not preferred by the payee or the holder in due
course and the statement on oath of the person who filed the complaint has also
not stated that he filed the complaint having been instructed by the payee or
holder in due course of the Cheque - Complaint was not filed abiding with the
provisions of the Act - Held that it was not open to the Magistrate to take
cognizance.
(Para 16)
(B) Negotiable Instruments Act, 1881, Sections
138 and 142(a) - Criminal Procedure Code, 1973, Section 190(1)(a) - Dishonour
of Cheque - Complaint - Power of Attorney Holder - Cognizance of offence - Taking of by
Magistrate - Except mentioning in the cause title there is no mention of, or a
reference to the Power of Attorney in the body of the said complaint nor was it
exhibited as part of the said complaint - In the list of evidence there is just
a mere mention of the words at serial no.6 viz. "Power of Attorney",
however there is no date or any other particulars of the Power of Attorney
mentioned in the complaint - Even in the verification statement made by the
respondent no.2, there is not even a whisper that she is filing the complaint
as the Power of Attorney holder of the complainant - Even the order of issue of
process does not mention that the Magistrate had perused any Power of Attorney
for issuing process - Held that the Magistrate wrongly took cognizance in the
matter and the Court below erred in putting the onus on the appellant rather
than the complainant -The impugned judgment passed by the High Court and the
order passed by the Additional Chief Metropolitan Magistrate, liable to be set
aside and the proceedings in question against the appellant quashed.
(Paras 17
to 19)
(C) Negotiable Instruments Act, 1881, Sections 138
and 142(a) - Dishonour of Cheque - Complaint - Power of Attorney Holder - Complaint
was filed by one ‘V’ claiming to be General Power of
Attorney of the complainant company -
Subsequently PW-1 ‘R’ gave the evidence on behalf of the Company under the
General Power of Attorney given by the complainant Company - The complaint was
not signed either by Managing Director or Director of the Company - PW-1 is
only the employee of the Company - As per Resolution of the Company i.e. Ex.P3
under first part Managing Director and Director are authorized to file suits
and criminal complaints against the debtors for recovery of money and for
prosecution - Under third part of the said Resolution they were authorized to
appoint or nominate any other person to appear on their behalf in the Court and
engage lawyer etc. - But nothing on the record suggest that an employee is empowered
to file the complaint on behalf of the Company - This apart, Managing Director
and Director are authorized persons of the Company to file the complaint by
signing and by giving evidence - At best the said persons can nominate any
person to represent themselves or the Company before the Court - In the present
case one ‘S’ employee of the Company signed the complaint and the Deputy
General Manager of the Company i.e. PW-1 gave evidence as if he knows
everything though he does not know anything - There is nothing on the record to
suggest that he was authorized by the Managing Director or any Director - Held
that Magistrate by rightly acquitted the appellant - Impugned judgment passed
by the High Court liable to be set aside and the judgment and order passed by
the Court of Metropolitan Magistrate upheld.
(Para 20)
JUDGMENT
Sudhansu Jyoti
Mukhopadhaya, J.:- As the
question of law involved is common in both the appeals, they are heard together
and disposed of by this common judgment. Criminal Appeal No.73 of 2007
2.
Brief facts
of the case are as follows:
The accused-appellant,A.C.
Narayanan challenged the common order dated 29th November, 2000 passed by the
Additional Chief Metropolitan Magistrate, 9th Court, Bandra, Mumbai
(hereinafter referred to as the, 'Trial Court') by filing applications u/s 482
of the Code of Criminal Procedure, 1973 before the High Court. By the said
common order the applications preferred by the appellant-A.C.Narayanan for
discharge/recalling process against him was rejected by the Trial Court. The
High Court by impugned judgment dated 12th August, 2005, dismissed the
applications preferred by the appellant and upheld the order passed by the
Trial Court.
3.
The
appellant is the Vice-Chairman and Managing Director of the Company M/s Harvest
Financials Ltd. (hereinafter referred to as the "Company") having its
registered office at Bombay. Under a scheme of investment, the appellant
collected various amounts from various persons in the form of loans and in
consideration thereof issued post-dated cheques either in his personal capacity
or as the signatory of the Company which got dishonoured.
4.
Respondent
No. 2-Mrs. Doreen Shaikh is the power of attorney holder of six complainants,
namely Mr.Yunus A. Cementwalla, Smt. Fay Pinto, Mr. Mary Knoll Drego, Smt.
Evelyn Drego, Mr. Shaikh Anwar Karim Bux and Smt. Gwen Piedade. On 16th
December, 1997, Respondent No.2 on behalf of the six complainants filed
Complaint Case Nos.292/S/1998, 293/S/1998, 297/S/1998, 298/S/1998, 299/S/1998
and 300/S/1998 respectively against the appellant herein under Sections 138 and
142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the,
'N.I. Act') before the Trial Court. The said Respondent No. 2 verified the
complaint in each of those cases as Power of Attorney Holder of the
complainants. The Additional Chief Metropolitan Magistrate vide order dated
04th April, 1998 issued process against the appellant u/s 204 of the Cr.P.C for
the offences punishable under Sections 138 and 142 of the N.I. Act.
5. The appellant, being aggrieved moved an
application for discharge/recall of process in each of the complaints. The
Trial Court vide common order dated 29th November, 2000 dismissed the
applications filed by the appellant.
6.
The
appellant being aggrieved preferred applications being Criminal Application
Nos.797, 798, 799, 801, 802 and 803 of 2002 before the High Court for calling
for the records of the case pending in the Trial Court. By impugned order dated
12th August, 2005 the said applications were dismissed by the High Court.
Criminal Appeal No.1437 of
2013
7.
The brief
facts of the case is as follows:
This appeal has been preferred by the accused-G. Kamalakar
against the judgment and order dated 19th September, 2007 passed by the High
Court of Judicature, Andhra Pradesh of Hyderabad in Criminal Appeal No. 578 of
2002. By the impugned judgment, the High Court allowed the appeal preferred by
the 1st respondent- M/s Surana Securities Ltd. (hereinafter referred to as the
'Company') set aside the judgment of acquittal dated 30th October, 2001 passed
by the XVIII Metropolitan Magistrate, Hyderabad in CC No.18 of 2000 convicted
the appellant under Section 138 of the N.I. Act and sentenced the appellant to
pay a fine of Rs. 6,10,000/-, out of which an amount of Rs. 6,00,000/- was to
be paid to the complainant towards compensation and in default to suffer simple
imprisonment for a period of one month.
8. The 1st respondent - M/s Surana Securities Ltd.
is the complainant and is a limited Company carrying on business of trading in
shares. The appellant-G. Kamalakar is the client of the 1st respondent-Company
and used to trade in shares. During the course of business, the appellant-G.
Kamalakar became liable to pay an amount of Rs. 7,21,174/- towards the
respondent-Company. In order to discharge the said liability, the appellant
issued six cheques amounting to Rs. 1,00,000/- each and another cheque for Rs.
1,21,174/- of different dates. When first six cheques were presented for
encashment on 18th September, 1997, the same got dishonoured with an
endorsement "funds insufficient". Upon receiving such information,
the Company issued a legal notice to the appellant to pay the amount but the
same was not paid by the appellant.
9. The Board of Directors of the 1st
respondent-Company, by a resolution authorized its Managing Director to appoint
an agent to represent the Company. Pursuant thereto, one Shri V. Shankar Prasad
was appointed as an agent by executing a General Power of Attorney. Later, he
was substituted by one Shri Ravinder Singh under another General Power of
Attorney. The respondent-Company filed a complaint under Section 138 of the
N.I. Act being CC No. 1098 of 1997 in the Court of XIth Metropolitan
Magistrate, Secunderabad. The complaint was transferred to the Court of XVIIIth
Metropolitan Magistrate, Hyderabad by order dated 3rd May, 2000 and was
registered as CC No. 18 of 2000. By judgment dated 30th October, 2001, the
Metropolitan Magistrate dismissed the complaint filed by the respondent-
Company u/s 138 of the N.I. Act.
10.
Aggrieved
by the said order, respondent-Company filed an appeal being Criminal No. 578 of
2002 before the High Court of Judicature, Andhra Pradesh at Hyderabad. By the
impugned judgment dated 19th September, 2007, the High Court allowed the
appeal, set aside the judgment dated 30th October, 2001 passed by the XVIIIth
Metropolitan Magistrate, Hyderabad and convicted the appellant u/s 138 of the
N.I. Act. Against the aforesaid order of conviction, the present appeal has
been preferred.
11. On 4th January, 2007, in view of the difference
of opinion among various High courts as also decisions of this Court in M.M.T.C. Ltd. and Anr. vs. Medchl Chemicals and Pharma(P)
Ltd. and Anr., (2002) 1 SCC 234 and Janki Vashdeo Bhojwani and Anr. vs.
Indusind Bank Ltd. and Ors., (2005) 2 SCC 217 referred the matter to
larger bench. The entire order of reference reads as under:
"Delay in filing counter affidavit is condoned.
Leave granted.
Interpretation and/or application of Section 142(a) of the
Negotiable Instruments Act, 1881, ("NI Act") is in question in this
appeal which arises out of a judgment and order dated 12.8.2005 passed by a
learned Single Judge of the High Court of Judicature at Bombay.
The basis fact of the matter is not in dispute.
Several cheques on different dates were issued by the
applicant herein which were dishonoured. The complaint petitions in the Court
of Additional Chief Metropolitan Magistrate, Bandra, Mumbai. The complaint
petitions were filed in the name of the respective payees of the cheques. She
also filed affidavits in support of the averments made in the said complaint
petitions. Cognizance of offence under Section 138 of the N.I. Act was taken
against the appellant. Summons were issued. Questioning the order issuing
summons by the learned Magistrate in exercise of his power under Section 204 of
the Code of Criminal Procedure, appellant herein filed criminal application
before the High Court of Judicature at Bombay, inter alia, contending that the
complaint petitions filed by the Power of Attorney Holder was not maintainable
and relying thereupon or on the basis thereof the learned Magistrate could not
have issued summons. The said contention has been negative by the High Court in
its impugned judgment. In the aforementioned premises interpretation of Section
142 (a) of the N.I. Act comes up for consideration before us. We may notice
that in M.M.T.C. and Anr. vs. Medchl Chemicals &
Pharma (P) Ltd. and Anr. (2002)1 SCC 234, a Division Bench of this Court
has opined.:
"This Court has, as far back as, in the case of Vishwa Mitter v. O.P. Poddar, (1983) 4 SCC 701 held
that it is clear that anyone can set the Criminal law in motion by filing a
complaint of facts constituting an offence before a Magistrate entitled to take
cognizance on the sole ground that the complainant was not competent to file
the complaint. It has been held that if any special statute prescribes offences
and makes any special provision for taking cognizance of such offences under
the statute, then the complainant requesting the Magistrate to take cognizance
of the office must satisfy the eligibility criterion prescribed by the statute.
In the present case, the only eligibility criteria prescribed by Section 142 is
that the complaint must be by the payee or the holder in due course. This criteria
is satisfied as the complaint is in the name and on behalf of the appellant
Company" However, in a later judgment in Janki
Vashdeo Bhojwani and Anr. vs. Indusind Bank Ltd. and Ors. , 2005 (2) SCC 217,
albeit in a different context, another Division Bench of this Court overruled
the judgment of the Bombay High Court in Pradeep
Mohanbay vs. Minguel Carlos Dias, [2000 (1) Bom.L.R. 908), inter alia
opining as follows:
"Order 3 Rules 1 and 2 CPC empowers the holder of
power of attorney to 'act' on behalf of the principal. In our view the word
'acts' employed in Order 3 Rules 1 and 2 CPC confines only to in respect of
'acts' done by the power-of-attorney holder in exercise of power granted by the
instrument. The term 'acts' would not include deposing in place and instead of
the principal. In other words, if the power of attorney holder has rendered
some 'acts' in pursuance of power of attorney, he may depose for the principal
in respect of such acts, but he cannot depose for the principal for the acts
done by the principal and not by him. Similarly, he cannot depose for the
principal in respect of the matter of which only the principal is entitled to
be cross-examined."
"on the question of power of attorney, the High Courts
have divergent views. In the case of Shambhu Dutt
Shastri vs. State of Rajasthan [1986 2 WLN 713 (Raj.)] it was held that
a general power-of- attorney holder can appear, plead and act on behalf of the
party but he cannot become a witness on behalf of the party. He can only appear
in his own witness box on behalf of himself. To appear in a witness box is
altogether a different act. A general power-of-attorney holder cannot be
allowed to appear as a witness on behalf of the plaintiff in the capacity of
the plaintiff" "However, in the case of Humberto
Luis v. Gloriano Armado Luis [(2002) 2 Bom. CR 754) on which reliance
has been placed by the Tribunal in the present case, the High Court took a
dissenting view and held that the provisions contained in Order 3 Rule 2 CPC
cannot be construed to disentitle the power-of-attorney holder to depose on
behalf of his principal. The High Court further held that the word 'act'
appearing in Order 3 Rule 2 CPC takes within its sweep 'depose'. We are unable
to agree with this view taken by the Bombay High Court in Floriano
Armando."
It is not in dispute that there is a conflict of opinion on
this issue amongst various High Courts, including the decision of Bombay High
Court in Mamtadevi Prafullakumar Bhansali vs.
Pushpadevi Kailashkumar Agrawal & Anr. [2005 (2) Mah. L.J. 1003) on
the one hand and a decision of the Andhra Pradesh High Court in S.P. Sampathy vs. Manju Gupta and Anr. (2002) Crl.L.J.
2621), on the other. One of the questions which would arise for
consideration is as to whether the eligibility criteria prescribed by Section
142(a) of the NI Act would stand satisfied if the complaint petition itself is
filed in the name of the payee or the holder in due course of the cheque and/or
whether a complaint petition has to be presented before the Court by the payee
or the holder of the cheque himself.
Another issue which would
arise for consideration is as to whether the payee must examine himself in
support of the complaint petition keeping in view the insertion of Section 145
of the Said Act (Act No. 55 of 2002).
In our opinion, in view of difference of opinion amongst
various High Courts as also the decisions of this Court in M.M.T.C. Ltd.
(Supra) and Janki Vashdeo Bhojwani (supra), particularly in view of the fact
that in the later case the earlier one was not noticed, an authoritative
pronouncement is necessary to be given in this regard. We, therefore, are of
the opinion that the matter should be considered by a larger Bench."
12.
The matter
was considered by a larger Bench of three Judges. By judgment dated 13th
September, 2013 reported in 2013 (11) SCALE 360 - A.C. Narayanan vs. State of
Maharashtra the said larger Bench framed the following questions:
(i)
Whether a
Power of Attorney holder can sign and file a complaint petition behalf of the
complainant? Whether the eligibility criteria prescribed by Section 142(a) of
NI Act would stand satisfied if the complaint petition itself is filed in the
name of the payee or the holder in due course of the cheque?
(ii)
Whether a
Power of Attorney holder can be varied on oath under Section 200 of the Code?
(iii) Whether specific averments as to the knowledge
of the Power of Attorney holder in the impugned transaction must be explicitly
asserted in the complaint?
(iv)
If the
Power of Attorney holder fails to assert explicitly his knowledge in the
complaint then can the Power of Attorney holder verify the complaint on oath on
such presumption of knowledge?
(v) Whether the proceedings contemplated under
Section 200 of the Code can be dispensed with in the light of Section 145 of
the N.I. Act which was introduced by an amendment in the year 2002?
13. The first question relating to the eligibility
of Power of Attorney holder to sign and file a complaint petition on behalf of
the complainants and whether eligibility criteria prescribed by Section 142(a)
of N.I. Act is satisfied, if the complaint petition itself is filed in the name
of the payee or the holder in due course of the cheque, was answered by larger
Bench in affirmative by its judgment in A.C.
Narayanan vs. State of Maharashtra, 2013(11) Scale 360 with observation,
which reads as follows:
"(19) As noticed hereinabove, though Janki Vashdeo
Bhojwani(supra), relates to powers of Power of Attorney holder under CPC 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 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 (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 21 Page 22
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. "
14. The second question relating to verification of
Power of Attorney holder on oath as prescribed under
Section 200 of the Code was
answered as follows:-
"(20) The stand of the appellant in Criminal Appeal
No. 73 of 2007 is that no complaint can be filed and no cognizance of the
complaint can be taken if the complaint is by the power of attorney holder,
since it is against Section 200 of the Code and deserves to be rejected. There
is no dispute that complaint has to be filed by the complainant as contemplated
by Section 200 of the Code, but the said Section does not create any embargo
that the attorney holder or legal representative(s) cannot be a complainant.
(22)
From a
conjoint reading of Sections 138, 142 and 145 of the N.I. Act as well as
Section 200 of the Code, it is clear that it is open to the Magistrate to issue
process on the basis of the contents of the complaint, documents in support
thereof and the affidavit submitted by the complainant in support of the
complaint. Once the complainant files an affidavit in support of the complaint
before issuance of the process under Section 200 of the Code, it is thereafter
open to the Magistrate, if he thinks fit, to call upon the complainant to
remain present and to examine him as to the facts contained in the affidavit
submitted by the complainant in support of his complaint. However, it is a
matter of discretion and the Magistrate is not bound to call upon the
complainant to remain present before the Court and to examine him upon oath for
taking decision whether or not to issue process on the complaint under Section
138 of the N.I. Act. For the purpose of issuing process under Section 200 of
the Code, 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. It is only if and where the Magistrate, after
considering the complaint under Section 138 of the N.I. Act, documents produced
in support thereof and the verification in the form of affidavit of the
complainant, is of the view that examination of the complainant or his
witness(s) is required, the Magistrate may call upon the complainant to remain
present before the Court and examine the complainant and/or his witness upon oath
for taking a decision whether or not to issue process on the complaint under
Section 138 of the N.I. Act.
(23)
In the
light of the discussion, we are of the view that the power of attorney holder
may be allowed to file, appear and depose for the purpose of issue of process
for the offence punishable under Section 138 of the N.I. Act. An exception to
the above is when the power of attorney holder of the complainant does not have
a personal knowledge about the transactions then he cannot be examined.
However, 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, there is no reason why the attorney holder cannot
depose as a witness. Nevertheless, an explicit assertion as to the knowledge of
the Power of Attorney holder about the transaction in question must be
specified in the complaint. On this count, the fourth question becomes
infructuous.
(24) In view of the discussion, we are of the opinion
that the attorney holder cannot file a complaint in his own name as if he was
the complainant, but he can initiate criminal proceedings on behalf of his
principal. We also reiterate that where the payee is a proprietary concern, the
complaint can be filed (i) by the proprietor of the proprietary concern,
describing himself as the sole proprietor of the "payee"; (ii) the
proprietary concern, describing itself as a sole proprietary concern,
represented by its sole proprietor; and (iii) the proprietor or the proprietary
concern represented by the attorney holder under a power of attorney executed
by the sole proprietor.
(25)
Similar
substantial questions were raised in the appeal arising out of S.L.P (Crl.) No.
2724 of 2008, which stand answered as above. Apart from the above questions,
one distinct query was raised as to whether a person authorized by a Company or
Statute or Institution can delegate powers to their subordinate/others for
filing a criminal complaint? The issue raised is in reference to validity of
sub-delegation of functions of the power of attorney. We have already clarified
to the extent that the attorney holder can sign and file a complaint on behalf
of the complainant- payee. However, whether the power of attorney holder will
have the power to further delegate the functions to another person will
completely depend on the terms of the general power of attorney. As a result,
the authority to sub- delegate the functions must be explicitly mentioned in
the general power of attorney. Otherwise, the sub-delegation will be
inconsistent with the general power of attorney and thereby will be invalid in
law. Nevertheless, the general power of attorney itself can be cancelled and be
given to another person."
15.
While
holding that there is no serious conflict between the decisions in "MMTC
(supra) and Janki Vashdeo Bhojwani (supra)", the larger Bench clarified
the position and answered the questions framed 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."
Case of A.C. Narayanan
16. In this case Magistrate had taken cognizance of
the complaint without prima facie establishing the fact as to whether the Power
of Attorney existed in first place and whether it was in order. It is not in
dispute that the complaint against the appellant was not preferred by the payee
or the holder in due course and the statement on oath of the person who filed
the complaint has also not stated that he filed the complaint having been
instructed by the payee or holder in due course of the cheque. Since the
complaint was not filed abiding with the provisions of the Act, it was not open
to the Magistrate to take cognizance.
17.
From the
bare perusal of the said complaint, it can be seen that except mentioning in
the cause title there is no mention of, or a reference to the Power of Attorney
in the body of the said complaint nor was it exhibited as part of the said
complaint. Further, in the list of evidence there is just a mere mention of the
words at serial no.6 viz. "Power of Attorney", however there is no
date or any other particulars of the Power of Attorney mentioned in the
complaint. Even in the verification statement made by the respondent no.2,
there is not even a whisper that she is filing the complaint as the Power of
Attorney holder of the complainant. Even the order of issue of process dated
20th February, 1998 does not mention that the Magistrate had perused any Power
of Attorney for issuing process.
18. The appellant has stated that his Advocate
conducted search and inspection of the papers and proceedings of the criminal
complaint and found that no Power of Attorney was found to be a part of that
record. This has not been disputed by the respondents. In that view of the
matter and in light of decision of the larger Bench, as referred above, we hold
that the Magistrate wrongly took cognizance in the matter and the Court below
erred in putting the onus on the appellant rather than the complainant. The
aforesaid fact has also been overlooked by the High Court while passing the
impugned judgment dated 12th August, 2005.
19.
In the
result, the impugned judgment dated 12th August, 2005 passed by the High Court
of Judicature at Bombay and the order dated 29th November, 2000 passed by the
Additional Chief Metropolitan Magistrate, 9th Court, Bandra, Mumbai are set
aside and the proceedings in question against the appellant are quashed.
Case of G. Kamalakar
20.
In this
case it is not in dispute that the complaint was filed by one Shri V. Shankar
Prasad claiming to be General Power of Attorney of the complainant company.
Subsequently PW-1 Shri Ravinder Singh gave the evidence on behalf of the
Company under the General Power of Attorney given by the complainant Company.
The complaint was not signed either by Managing Director or Director of the
Company. It is also not in dispute that PW-1 is only the employee of the
Company. As per Resolution of the Company i.e. Ex.P3 under first part Managing
Director and Director are authorized to file suits and criminal complaints
against the debtors for recovery of money and for prosecution. Under third part
of the said Resolution they were authorized to appoint or nominate any other
person to appear on their behalf in the Court and engage lawyer etc. But
nothing on the record suggest that an employee is empowered to file the
complaint on behalf of the Company. This apart, Managing Director and Director
are authorized persons of the Company to file the complaint by signing and by
giving evidence. At best the said persons can nominate any person to represent
themselves or the Company before the Court. In the present case one Shri
Shankar Prasad employee of the Company signed the complaint and the Deputy
General Manager of the Company i.e. PW-1 gave evidence as if he knows
everything though he does not know anything. There is nothing on the record to
suggest that he was authorized by the Managing Director or any Director.
Therefore, Magistrate by judgment dated 30th October, 2001 rightly acquitted
the appellant. In such a situation, the case of the appellant is fully covered
by decision by the larger bench of this Court passed in the present appeal. We
have no other option but to set aside the impugned judgment dated 19th September,
2007 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in
Criminal Appeal No.578 of 2002. The judgment and order dated 30th October, 2001
passed by the Court of XVIII Metropolitan Magistrate, Hyderabad in C.C.No.18 of
2000 is upheld.
21. The appeals are allowed accordingly.
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