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2005 DIGILAW 1473 (MAD)

S. Radha Krishnan v. Dr. S. V. Petha Perumal

2005-09-01

T.V.MASILAMANI

body2005
Judgment :- (Petition filed under Section 482 Cr.P.C. praying to call for the records pertaining to S.T.C.No.3069 of 2004 on the file of the Judicial Magistrate No.III, Madurai and quash the same.) The petitioner/accused has filed this petition challenging the order of the Judicial Magistrate No.III, Madurai in taking cognizance of the complaint filed by the respondent/complainant in S.T.C.No.3069 of 2004 on his file. 2. The respondent preferred the complaint through the power of attorney before the Judicial Magistrate under Section 138 r/w. 142 of Negotiable Instruments Act against the petitioner herein and after examining the power of attorney under Section 200 Cr.P.C., learned Judicial Magistrate had taken cognizance of the case. The petitioner has challenged the said cognizance of the case on various grounds and emphasised inter alia among other grounds that the Judicial Magistrate erred in examining the power of attorney of the complainant for the purpose of taking cognizance of the matter on his file. 3. While the matter came up for admission, Mr.A.G.Senthil Kumar, learned counsel for the petitioner has advanced his arguments. 4. According to the learned counsel for the petitioner, the impugned complaint filed by the power of attorney ought not have been taken on file for the reason that the power of attorney is neither a payee nor a holder in due course as contemplated under Section 142(a) of the Negotiable Instruments Act. In this context, he has referred me the decisions rendered by Hon'ble Supreme Court in JANKI VASHDEO BHOJWANI v. INDUSIND BANK LIMITED (AIR 2004 S.C.W. 7064), and contended on the basis of the ratio laid down therein that the proceedings impugned herein has to be quashed as the power of attorney can only appear, plead and act on behalf of the party, but he cannot become witness on behalf of the party and therefore he has urged that on this solitary point alone the impugned proceedings is liable to be quashed. 5. In this circumstance, it is necessary to extract the relevant principle laid down in the said decision so as to dispose of this petition and the same runs as follows: - "On the question of power of attorney, the High Courts have divergent views. 5. In this circumstance, it is necessary to extract the relevant principle laid down in the said decision so as to dispose of this petition and the same runs as follows: - "On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri V. State Of Rajasthan (1986 2WLL 713), 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 capacity. No one can delegate the power to appear in 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. The aforesaid judgment was quoted with the approval in the case of RAM PRASAD v. HARI NARAIN AND OTHERS ( AIR 1998 RAJ. 185 ). It was held that the word "acts" used in Rule 2 of Order III of the C.P.C. does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the Court, a commission for recording his evidence may be issued under the relevant provisions of the C.P.C." 6. Relying upon the said dictum of law referred supra, learned counsel for the petitioner would contend further that since the power of attorney in this case had given sworn statement before learned Judicial Magistrate so as to enable the Court to take cognizance of the matter and inasmuch as he had no authority to give evidence on behalf of his principal, the impugned proceedings in taking cognizance of the case is not valid in law. 7. In this regard, it is essential to extract Section 142(a) of the Negotiable Instruments Act which reads as follows: - "Cognizance of offences. 7. In this regard, it is essential to extract Section 142(a) of the Negotiable Instruments Act which reads as follows: - "Cognizance of offences. -- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -- (a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque." 8. Further, it is useful in these circumstances to refer to the decision in HAMSA v. IBRAHIM ( 1994 (1) CRIMES 395 (KERALA) and it has been held by His Lordship Justice K.T. THOMAS (as he then was) as follows: - "According to the law of England "every person who is sui juris has a right to appoint an agent for any purpose whatever and that he can do so when he is exercising a statutory right no less than when he is exercising any other right". This was recognized as a common law, when a person authorises another to sign for him, the signature of the person so signing is the signature of the person authorizing it. Thus, the law is well settled that whatever a person can do himself, he can do through an agent." 9. In view of the above said ratio laid down with reference to Sections 198 and 199 Cr.P.C., it was held further in the said judgment as follows: - "No inference can be drawn that Parliament never intended to allow the complaint to be filed through an agent or power of attorney holder of a payee or holder in due course." 10. Hence, it follows that the overriding effect of Section 2 of Powers of Attorney Act has been reiterated in the decision referred supra and therefore the power of attorney in this case was rightly authorised by the payee to set the law in motion by filing the complaint before the learned Judicial Magistrate. 11. Hence, it follows that the overriding effect of Section 2 of Powers of Attorney Act has been reiterated in the decision referred supra and therefore the power of attorney in this case was rightly authorised by the payee to set the law in motion by filing the complaint before the learned Judicial Magistrate. 11. In this juncture, it is relevant to extract the ratio in the decision, JANKI VASHDEO BHOJWANI v. INDUSIND BANK LIMITED (AIR 2004 S.C.W. 7064), wherein the Supreme Court prescribed the powers of power of attorney to present a case on behalf of his principal and it runs as follows: - "If the power of attorney holder has rendered some "acts" in pursuance to 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 which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined." 12. In a similar case in RUBY LEATHER EXPORTS v. K. VENU (1994-1-L.W.(CRL) 34), learned Single Judge of this Court ARUNACHALAM, J. (as he then was) held as follows:- "The eligibility criteria under the Negotiable Instruments Act does not get disturbed, if a GPA duly constituted initiates private complaints, for, as I have stated earlier, the power of attorney agent, steps into the shoes of the payee or the holder in due course of the cheque. Once a GPA makes the complaint, for all practical purposes, it is the payee or the holder in due course of the cheque, who is the complainant. The words 'in writing' mentioned in Section 142(a) of the Negotiable Instruments Act, to my mind, cannot be restricted to mean that it must be in writing by the payee himself or the holder in due course himself for, if it is made by the GPA, it tantamounts to the complaint being made by the payee or as the case may be the holder in due course of the cheque. As rightly pointed out by one of the counsel, the words 'in writing' appear to have been introduced under Section 142(a) of the Negotiable Instruments Act, contra Section 2(d) of Cr.P.C., which postulates an oral complaint as well." 13. As rightly pointed out by one of the counsel, the words 'in writing' appear to have been introduced under Section 142(a) of the Negotiable Instruments Act, contra Section 2(d) of Cr.P.C., which postulates an oral complaint as well." 13. Taking into consideration of the principles of law enunciated by the Supreme Court as well as by this Court in the decisions referred supra, I am unable to accept the contention put forth by the learned counsel for the petitioner for the simple reason that the power of attorney duly authorised by the payee having stepped into his shoes, is entitled to prefer the complaint on behalf of his principal before the Court so as to set the law in motion. 14. A careful scrutiny of the sworn statement of the power of attorney recorded by the Judicial Magistrate on 20.11.2003 would go to show that he gave the statement so as to set the law in motion under Section 142(a) of the Negotiable Instruments Act and therefore this Court is of the considered view that there is no illegality committed by the learned Judicial Magistrate in taking cognizance of the matter. 15. Though in addition to the main ground urged before this Court, the other grounds were raised by the petitioner herein, the same cannot be considered at this stage as such contentions have to be adjudicated upon by the Court below after recording evidence on merits and therefore I am of the view that the argument put forth by the learned counsel for the petitioner on the basis of such pleas cannot be entertained at this stage. 16. In view of the guidelines laid down by the Hon'ble Supreme Court in JANKI VASHDEO BHOJWANI v. INDUSIND BANK LIMITED (AIR 2004 S.C.W. 7064), learned Judicial Magistrate is directed to examine the payee as the principal witness either in person or by appointing a commission if necessary to decide the main issue with reference to the matter involved in this case and to dispose of the same on merits. 17. For the aforesaid reasons, the petition is closed with the above direction. Consequently, Crl.M.P.No.3241 of 2005 is also closed.