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Madhya Pradesh High Court · body

2008 DIGILAW 1262 (MP)

Hind Spinners, Dewas v. Jagdish Chandra

2008-10-24

N.K.MODY

body2008
ORDER 1. This order shall also govern the disposal of Cr.R. Nos. 693/08 and 694/08 filed by the petitioner and Cr.R. Nos. 945/08,946/08 and 947/08 filed by the respondent. In all the criminal Revisions parties are one and the same and question involved is also one and the same, therefore, all these petitions are being disposed of by one order. 2. All the Revision petitions are against the judgment dated 16.6.2008 passed by Sessions Judge, Indore, whereby the judgment dated 20.11.2007 passed by Special Magistrate, Dewas whereby petitioner was convicted u/s 138 of the Negotiable Instruments Act (which shall be referred hereinafter as an Act) was set aside. 3. Short facts of the case are that the respondent filed a complaint u/s 138 of the Act alleging that the respondent company who is complainant herein is the sister concern of M/s Hind Spinner Ltd. and is in business of production and sale of synthetic cloth. It was alleged that petitioner company had a business of production of synthetic cloth. It was alleged that for its business petitioner company has to purchase the synthetic yarn from the respondent company. It was alleged that the goods were purchased by the petitioner company from the respondent on credit and the cheque dated 18.3.2000 of Bank of India branch Bhilwada was issued in favour of respondent company. It was alleged that because of financial crises, upon request of petitioner company the date of cheque which was initially 18.3.2000 was amended as 18.3.2002. It was alleged that respondent company presented the cheque for collection on 2.8.2002.It was alleged that the cheque which was presented by the respondent company was returned by Bank of India, Branch Dewas with a memo dated 17th August 2002 whereby the respondent company was informed that the drawer has closed the account. It was alleged that after return of unpaid cheque respondent issued notice through registered post acknowledgment due and also simultaneously under certificate of posting. The notice was returned back to the respondent company on 13th September 2002 with a postal remark of refusal. It was alleged that the petitioner company in reply to the notice informed the respondent company to grant some time for payment. It was alleged that since the cheque amount was not paid by the petitioner company inspite of demand notice, therefore, the petitioner company has committed an offence punishable u/s 138 of the Act. It was alleged that the petitioner company in reply to the notice informed the respondent company to grant some time for payment. It was alleged that since the cheque amount was not paid by the petitioner company inspite of demand notice, therefore, the petitioner company has committed an offence punishable u/s 138 of the Act. It was prayed that after the trial the petitioner company be convicted accordingly. In the petition it was also alleged that the complaint is being filed by Mr. Santosh Bharti, Account Assistant of the respondent company as vide resolution dated 14.5.1999 Santosh Bharti has been authorized by the Board of Directors and special power of attorney has been drawn in his favour. Since there were three cheques, therefore, three separate cases were filed by the respondent company towards each of the cheque. 4. After filing of the complaint u/s 200 CrPC statement of Santosh Bharti was recorded by the learned trial Court u/s 202 CrPC and after taking cognizance the notices were issued to the petitioner company. After framing of charges respondent company examined Mr. B.S. Nigam as special power of attorney of the respondent company alleging that in compliance of resolution of respondent company passed by Board of Directors of respondent company on 29.6.2004, Shri B.S. Nigam has been authorized to appear and give statement and prosecute the case on behalf of respondent company. After recording of evidence learned trial Court allowed the claim petition filed by respondent company holding that petitioner company has committed an offence punishable u/s 138 of the Act and is liable to pay double of the cheque amount. Being aggrieved by the judgment passed by the learned trial Court an appeal was filed by the petitioner company. After hearing the parties, learned appellate Court allowed the appeal filed by the petitioner company and set aside the judgment passed by the learned trial Court, whereby the case was remanded back to the learned JMFC with a direction to decide the case afresh after recording of evidence. Being aggrieved by the Judgment impugned herein three petitions have been filed by the petitioner company which are numbered as Cr.R. Nos. 692/08,693/08 & 694/08. Respondent company is also aggrieved by the Judgment and has filed Cr.R. Nos.945/08,946/08 & 947/08. 5. Learned counsel for petitioner argued at length and submits that the impugned Judgment ·is illegal and deserves to be set aside. 692/08,693/08 & 694/08. Respondent company is also aggrieved by the Judgment and has filed Cr.R. Nos.945/08,946/08 & 947/08. 5. Learned counsel for petitioner argued at length and submits that the impugned Judgment ·is illegal and deserves to be set aside. It is submitted that the judgment passed by the learned Court below is contrary to section 386 of CrPC. It is submitted that in criminal case the cases are required to be decided on the strength of the evidence on record and in rare cases the case be remanded back for retrial. For this contention learned counsel placed reliance on a decision in the matter of Ukha Kolhe. v. state of Maharashtra, reported in AIR 1963 SC 1531 , wherein Hon'ble '" apex Court has held that an order for retrial of a criminal case is made in exceptional cases, and not unless the appellate Court is satisfied that Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of retrial wipes out from the record the earlier proceeding and expenses the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could not be cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. 6. Further reliance is placed on a decision in the matter of Babu Singh v. State of M.P., reported in [ 1993 (II) MPWN 85 = 1993 MPLJ 433 ] wherein this Court has observed that order of retrial by appellate Court is to be made in exceptional cases and on account of perverse and injudicious reasoning the matter can not be remanded. 7. 7. Another contention of the learned counsel is that the complaint was filed by the respondent company through Santosh Bharti Account Assistant, who was the power of attorney of the respondent company. It is submitted that no body can be permitted to appear in criminal cases on the basis of power of attorney. In alternative learned counsel submits that the respondent company has examined Mr. B.S. Nigam who has claimed himself to be power of attorney of the respondent company on the basis of resolution dated 29.6.2004. It is submitted that since the complaint filed under signature of Santosh Bharti and his statement has been recorded at the initial stage on the basis of which cognizance was taken, therefore, the statement of Mr. B.S. Nigam could not be taken into consideration to prove the contents of complaint. For this contention reliance is placed on a decision in the matter of Janki Vashdeo Bhojwani v. Indusind Bank Ltd., reported in 2005 (1) MPLJ 421, wherein considering provisions of order III Rule 1 & 2 and the Power of Attorney Act, the Hon 'ble apex Court held that word 'Acts' employed or Order III, Rules 1 and 2 of the Code of Civil Procedure is confined only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument and it would not include deposing in place and instead of the principal. Reliance is also placed on a decision in the matter of Mahendra Kumar v. Armstrong, reported in 2005 (2) MPLJ 419 , wherein it was held that holder of power of attorney can appear as a witness in his own capacity but not in the capacity of complainant. 8. On the strength of aforesaid decisions learned counsel submits that learned Court below committed error in remanding the case. It is submitted that since no evidence has been adduced by the respondent company except by examining the power of attorney holders, therefore, learned appellate Court ought to have allowed the appeal instead of remanding the case. 9. Learned counsel for respondent who is also aggrieved by the judgment passed by the learned appellate Court submits that the respondent company examined Santosh Bharti in whose favour resolution was passed and power of attorney was executed by the respondent company. 9. Learned counsel for respondent who is also aggrieved by the judgment passed by the learned appellate Court submits that the respondent company examined Santosh Bharti in whose favour resolution was passed and power of attorney was executed by the respondent company. It is submitted that Santosh Bharti was examined by the respondent company u/s 202 of the CrPC. It is submitted that lateron Santosh Bharti left the job, therefore, another power of attorney was executed in favour of Mr.B.S. Nigam in whose favour the resolution was passed by the respondent company. It is submitted that in the facts and circumstances of the case it was incumbent upon the learned appellate Court to decide the appeal on merits, but instead of deciding the appeal on merits, learned Court below allowed the appeal and remanded the case back, which is illegal and deserves to be set aside. For this contention reliance is placed on a decision in the matter of Associated Cement Co. Ltd. v. Kesvanand, AIR 1998 SC 596 , wherein Hon 'ble apex Court held that even if a complaint is made in the name of an incorporeal person it is necessary that a natural person represents such juristic person in the Court and it is that natural person who is looked upon, for all practical purpose to be the complainant in the case. In other words, when the complainant is a body corporate it is the de juro complainant, and it must necessarily associate a human being as defacto complainant to represent the former in Court proceeding. Further reliance is placed on a decision in the matter of M/s. MMTC Ltd. v. M/s. Medchi Chemicals and Pharma (P) Ltd., AIR 2002 SC 182 , wherein the complaint lodged in the name and on behalf of company who is payee of cheque, fact that complaint was lodged by Manager or Deputy General Manager who has not been authorized by Board of Directors to sign and file complaint on behalf of company cannot be a ground for quashing complaint since defect is cured. 10. 10. On the strength of these decisions it was prayed that the petition filed by the respondent be allowed with a direction to the learned appellate Court to decide the case on merits taking into consideration the evidence given by the respondent and without being prejudice with the order passed by the learned appellate Court which is impugned herein. 11. In the matter of Shankar Finance and Investments v. State of Andhra Pradesh, (2008) 8 SCC 536 , Hon'ble Supreme Court has held that the attorney holder is the agent of the grantor. When the grantor authorizes the attorney holder to initiate legal proceedings and the attorney holder accordingly initiates legal proceedings, he does so as the agent of the grantor and the initiation is by the grantor represented by his attorney holder, and not by the attorney holder in his person capacity. Therefore 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;(iii) the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor. But attorney holder cannot file the complaint in his own name as if he was the complainant. He can initiate criminal proceedings on behalf of his Principal. 12. Keeping in view the aforesaid position of law and the fact that the appellate Court was not of the view that the Court trying the proceedings had no jurisdiction. tried the same, this Court is of the view that the Judgment passed by the learned appellate Court is contrary to section 386 of CrPC. In the opinion of this Court, the learned Court was expected to decide the case on the strength of the evidence on record. tried the same, this Court is of the view that the Judgment passed by the learned appellate Court is contrary to section 386 of CrPC. In the opinion of this Court, the learned Court was expected to decide the case on the strength of the evidence on record. So far as the evidence adduced by the respondent-complainant by examining B.S. Nigam as Special Attorney is concerned, it is required to be decided by the appellate Court, keeping in view the law laid down by the Hon'ble apex Court in the matter of Associated Cement Company Ltd. v.Keshvanand and in the matter of Shankar Finance and Investments v.State of Andhra Pradesh (supra) wherein the Hon'ble apex Court has observed and suggested that a pragmatic proposition that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. There may be occasions when a different person can represent the company e.g. the particular person who represents the company at the first instance may either retire from the company's service or may otherwise cease to associate therewith or he would be transferred to a distant place. In such cases it would be practically difficult for the company to continue to make the same person represent the company in the Court. In any such eventuality it is open to the de juro complainant company to seek permission of the Court for sending any other person to represent the company in the Court. 13. In view of this, Cr.R. No. 692/2008, Cr.R. No. 693/2008 and Cr.R. No. 694/2008 filed by the petitioner and the Cr.R. No. 945/2008, Cr.R. No. 946/2008 and Cr.R. No. 947/2008 filed by the respondent are allowed. The impugned judgment passed by the appellate Court is hereby set -aside and the cases are remanded back to the learned appellate Court to decide the matter afresh on merits. Parties are directed to remain present before the learned Court below on 20.11.2008.