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2006 DIGILAW 1340 (MP)

Mahil Fibers v. Saai Agro Industries Plant

2006-11-27

S.C.VYAS

body2006
Judgment ( 1. ) THIS is a petition under Section 482 of the Code of Criminal Procedure preferred by petitioner complainant for quashment of the impugned order dated 5-8-04 in Criminal Case No. 831 of 03 whereby the learned Trial Magistrate dismissed the complainant and discharged the respondent of the offence on the ground that complaint was filed by Power of Attorney Holder of the complainant and therefore no cognizance could be taken. ( 2. ) THE said impugned order was challenged by petitioner complainant by filing Cri. Revision before Addl. Sessions Judge, Khargone which has also been dismissed vide order dated 20-5-05. That is how petitioner complainant has come up before this Court. ( 3. ) SHORT facts of the case are that a private complaint was filed against the respondents for commission of offence under Section 138 of Negotiable Instruments Act (hereinafter shall be referred as the "act") on behalf of Mohil Fibers Bhikangaon, through Power of Attorney Holder Basant Kumar Jain who is said to be Power of Attorney Holder of Sachin Kumar Jain. Mr. Basant Kumar Jain was examined by the Trial Court under Section 200 of the Code and thereafter cognizance of the offence under Section 138 of the Act has been taken. ( 4. ) AFTER service on respondents, she filed an application that the complaint has not been filed by the Payee or holder in due course of the cheque and therefore, the complaint is liable to be dismissed. ( 5. ) AFTER hearing both the parties, the learned Trial Magistrate has passed the impugned order and dismissed the complaint by discharging the respondent. ( 6. ) LEARNED Counsel for petitioner contended that Power of Attorney Holder of the complainant has got an authority to file complaint on the basis of specific power given to him by the original complainant in this regard. The Power of Attorney (Annexure P. 4) was filed before the Trial Court. It has also been contended that the provisions of Section 142 of the Act have been misinterpreted by the Trial Court and the judgment rendered by this Court in the matter of Mahendra Kumar v. Armstrong and Ors. 2005 (5) MPHT 49 : 2005 (2) MPLJ 419 and S. P. Sampathy and Ors. v. Smt. Manju Gupta and Anr. 2002 (II) LSCT 275 have also been mininterpreted by both the Courts below. ( 7. 2005 (5) MPHT 49 : 2005 (2) MPLJ 419 and S. P. Sampathy and Ors. v. Smt. Manju Gupta and Anr. 2002 (II) LSCT 275 have also been mininterpreted by both the Courts below. ( 7. ) LEARNED Counsel for petitioner also contended that cognizance could have been taken by the Trial Court on the basis of complaint filed by Power of Attorney Holder of the complainant and only on the ground that complaint has not been filed by original complainant or payee or holder of the cheque should not have been dismissed in view of the judgment rendered in the matter of Anil Kumar and Anr. v. Sant Prakash Gupta 2001 (3) MPHT 325 : 2001 Cr. L. J. 2623 because as per provisions of Section 2 of Power of Attorney Act, 1882 and Section 200 of the Code, a person holding Power of Attorney, Payee or the Holder of Cheque is competent to file and prosecute the complaint as such. The same could not have been dismissed on the ground that the complaint is not signed and the statement of complainant had not been recorded. It has also been argued in the alternative that if at all on the basis of subsequent decision that the Power of Attorney Holder is not competent to file a complaint, in such circumstances, it should not be held as illegality but at the most should be treated as an irregularity which can be cured at the later stage and therefore, the complaint should not have been dismissed only on this technical ground. ( 8. ) PER contra, learned Counsel appearing for respondent submitted that provisions of Sections 138 and 142 of the Act are very clear which provide that notwithstanding contained in the Code of Criminal Procedure, 1973, 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. Learned Counsel further submitted that provisions of Section 142 (a) of the Act goes to the root of the case and puts a bar at the very beginning for taking cognizance on a complaint which is not filed by Payee or holder in due course. ( 9. Learned Counsel further submitted that provisions of Section 142 (a) of the Act goes to the root of the case and puts a bar at the very beginning for taking cognizance on a complaint which is not filed by Payee or holder in due course. ( 9. ) I have given anxious consideration to the rival contentions submitted by Counsel for parties and the judgments relied on by them. ( 10. ) THE matter of S. P. Sampathy (supra) is infact the judgment rendered by Andhra Pradesh High Court, wherein it has been held that complaint cannot be filed by Power of Attorney Holder or by Payee under the provisions of Section 138 of the Act. Unfortunately, the same was cited as the judgment of Apex Court before both the Courts below and have been considered the same as such. On account of this mistake, it appears that both the Courts below have travelled in wrong direction and on the basis of aforesaid judgment and law laid down by this Court in different matters have not been properly noted or interpreted by both the Courts below. ( 11. ) THIS Court in the matter of Mahendra Kumar (supra) has considered this question in detail and arrived at the conclusion that Power of Attorney Holder and Special Power of Attorney Holder can very well file a complaint on behalf of complainant and such complaints are maintainable in view of the definition of Power of Attorney and provision of Section 2 of the Powers of Attorney Act, but examination of the Attorney as witness in the capacity of the complainant would not be permissible. The holder of power of attorney can appear as a witness in his own capacity but only by non-examination of the complainant under Section 200 of the Code, the cognizance taken by the Magistrate on the complaint cannot be held illegal or without jurisdiction. For prosecuting the complaint, the complainant can examine himself in further proceeding of the case and because of some reason, if the complainant is not able to appear before the Court, he can file an appropriate application for his examination on commission. For prosecuting the complaint, the complainant can examine himself in further proceeding of the case and because of some reason, if the complainant is not able to appear before the Court, he can file an appropriate application for his examination on commission. At the stage of taking cognizance, if the holder of power of attorney has appeared as a witness, his testimony can be considered for the purposes of registration of the complaint/issuance of process under Section 204 of the Code, but for further proceedings, examination of the complainant would be must and if partner/working partner is a juristic person, then on his behalf, the managing partner/working partner if it is a partnership firm and if it is a company or any other juristic person then the person authorized in this behalf would be competent to enter into witness box. ( 12. ) IN view of the aforesaid law laid down by this Court, it can very well be held that complaint filed by Power of Attorney Holder of the complainant is maintainable and could not be dismissed on this ground alone and therefore, impugned orders passed by both Courts below cannot sustain on this ground. ( 13. ) THUS, it has been clearly held in the above referred matter that complainant can always be called or can be examined on commission. If such necessity is felt to cure the defect of examination of complainant in person or even his affidavit can also be filed. Thus, the complaint could not be dismissed on the ground that complainant himself was not examined at the time of registration of the case. ( 14. ) THE Apex Court in the matter of Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. 2005 (1) MPLJ 421 has held that Power of attorney holder can appear as witness in his personal capacity. This principle has been laid down in view of the provisions of Order 3 Rules 1 and 2 of Code of Civil Procedure and Powers of Attorney Act (7 of 1882), Section 2. This judgment was considered by this Court in the matter of Mahendra Kumar (supra ). ( 15. ) SO far as the case in hand is concerned, the stage of examination of witnesses had not yet come and question regarding taking of cognizance of the complaint only is to be determined. ( 16. This judgment was considered by this Court in the matter of Mahendra Kumar (supra ). ( 15. ) SO far as the case in hand is concerned, the stage of examination of witnesses had not yet come and question regarding taking of cognizance of the complaint only is to be determined. ( 16. ) IN the matter of G. J. Packaging Private Ltd. and Anr. v. S. S. Sales and Anr. 2006 (2) Bankers Journal 244, it has also been held that a general Power of Attorney holder can file a complaint on behalf of payee or holder in due course. However, neither the Cr. PC nor Negotiable Instruments Act contemplates that anyone can depose for and on behalf of the complainant. Therefore, Power of Attorney cannot depose on behalf of the complainant, but he can appear as a witness on behalf of complainant. In para 17 of the judgment after considering the opinion of different High Courts, it was held that conspectus of judicial opinion, therefore, establishes a principle that complaint in respect of offence punishable under Section 138 of the Act need not be personally filed by the payee or holder in due course. It can be filed by Power of Attorney of the payee. Where the complainant is a juristice person, it can be represented by a natural person to act as a de facto complainant. Where a Power of Attorney has full knowledge of the transaction, his statement can be recorded by the Magistrate for verification of the complaint for ascertaining the truth of the allegations and to enable him to take a proper decision as to whether the process should be issued or not. Even if the complaint is signed by a person, who is not properly authorized, this defect can be subsequently rectified. The complaint cannot quash merely on this technical ground. ( 17. ) I agree with the view expressed in the above referred matter and in the matter of Mahendra Kumar (supra) of this Court, the impugned order of dismissal of the complaint on the mere ground that it was not presented by complainant himself, is not liable to be sustained and deserves to be quashed. ( 18. ) LEARNED Counsel appearing for respondent has relied on the judgment reported in the matter of Ujwal Textiles and Anr. v. V. N. Commercial Corporation and Anr. ( 18. ) LEARNED Counsel appearing for respondent has relied on the judgment reported in the matter of Ujwal Textiles and Anr. v. V. N. Commercial Corporation and Anr. 2003 (2) DCR 207 and RBF Nidhi Ltd. and Anr. v. State of A. P. and Ors. II (2003) BC 173. In the matter of Ujwal Textiles, the complaint presented by General power of attorney holder on behalf of Proprietary concern itself was held bad as it was not presented in accordance with Section 138 of the Act. In the matter of RBF Nidhi Ltd. (supra), the complaint preferred by attorney holder and his examination at the time of presentation of complaint was found bad in law and has been held that examination of complainant under Section 200 of the Code is mandatory and the original complainant have to be examined at the time of presentation of the complaint. I respectfully disagree with the views expressed in the above referred matters. ( 19. ) HOWEVER, as has been held by this Court in the matter of Mahendra Kumar (supra) and by Mumbai High Court in the matter of G. J. Packaging Pvt. Ltd. (supra), Power of attorney holder can present a complaint and in case there is defect as such, can be cured at any stage and therefore, the complaint should not be dismissed on this technical ground. ( 20. ) ON account of the foregoing discussions, the petition deserves to be allowed and is hereby allowed. The impugned orders passed by both the Courts below are hereby quashed. The learned Trial Magistrate is directed to restore the private criminal complaint and proceed in the matter in accordance with law.