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Karnataka High Court · body

2008 DIGILAW 429 (KAR)

Chandrashekharappa v. Sharanabasappa

2008-08-18

R.B.NAIK

body2008
Judgment 1. The order of issue of process for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 is challenged in the present petition on the ground that the complaint is presented by the power of attorney holder and he has stepped into the witness-box and has given sworn statement and on the basis of the averments in the compliant and the sworn statement and the material made available, the learned Magistrate directed issue of process. 2. Having regard to the said facts, the points that arise for my consideration in the present petition are: 1. Whether a power of attorney holder can present a complaint under Section 200 of the Code of Criminal Procedure, 1973? 2. Whether the power of attorney holder can prosecute the criminal Proceedings without permission under Section 302 of the Code of Criminal Procedure? 3. The first point need not detain me long since it is already held by me in the case of Om Shakthi Scheuled Castes and Scheduled Tribes and Minority Credit Co-operative Society Limited v M. Venkatesh (2008(2) Kar. L.J. 486: 2008(1) AIR Kar. R. 311), that a power of attorney holder can present a complaint. 4. As regards the second point in the present proceedings, the learned Counsel for the petitioner has relied upon the judgment in the case of Jimmy Jahangir Madan v Bolly Cariyappa Hindley (deceased) by L.Rs (2005(1) Kar. L.J. 492 (SC) AIR 2005 SC 48 : (2004) 12 SCC 509 : 2005 Cri. L.J. 112 (SC) 2004 AIR SCW 6248), and he drew my attention to paragraph 10 wherein the Hon’ble Supreme Court has observed as under: “…..We are of the view that the Trial Court was not justified in allowing the petitions under Section 302 of the Code and the High Court has committed an error in confirming the said order which is liable to be set aside and petition under Section 302 of the Code are fit to be dismissed giving liberty to the heirs either to make application themselves before the Court concerned to continue the prosecution or apply to the Court to grant permission to them to authorise the power of attorney holders to continue the prosecution on their behalf”. 5. In the said case, the original complainant was dead. The legal representatives authorised power of attorney holder to prosecute the proceedings. 5. In the said case, the original complainant was dead. The legal representatives authorised power of attorney holder to prosecute the proceedings. As such, the power of attorney continued to prosecute the proceedings. An objection was raised stating that without an application under Section 302 of the Code of Criminal Procedure, he cannot prosecute the case, as such, the matter went to Hon’ble Supreme Court and the Supreme Court held that in the said case, the heirs themselves have not filed the applications to continue the prosecution rather the same have been filed by their power of attorney holders and unless such an applications are made by the heirs, the said applications could not be entertained at all. In addition to the same as pointed out earlier it is clearly observed that the legal representatives themselves have not made applications under Section 302 seeking permission to prosecute the case and if they so desire to appoint the power of attorney holder, they should make an application seeking permission under Section 302 of the Code to appoint the power of attorney holder to prosecute the case. 6. Per contra, it is the argument of the learned Counsel for the respondent that when once permission is granted to the legal representatives of the complainant authorising him to prosecute the proceedings and permitting them to be represented by power of attorney, that would be the end of the matter and there is no necessity for obtaining such a permission again by the power of attorney holder. 7. The learned Counsel for the petitioner has also relied upon the judgment in the case of Janki Vashdeo Bhojwani and Another v Indusind Bank Limited and Others ( AIR 2005 SC 439 : (2005)2 SCC 217 : 2004 AIR SCW 7064), and contended that the power of attorney holder would not have any personal knowledge of the matter and therefore he can neither depose nor can he be cross-examined on the facts which are in the personal knowledge of the principal. 8. There is no dispute with regard to the said aspect of the matter. 8. There is no dispute with regard to the said aspect of the matter. However, the person who delegates power, delegates the information also to the power of attorney holder and on the basis of the information delegated to him, the power of attorney holder can always depose on behalf of the principal and in a case under Section 138, the cases are normally based upon the documents produced in the case, as such personal knowledge of the power of attorney holder on the issue concerned would be based on the documents as such the judgment in the case of Janki Vashdeo Bhojwani, is of no help to the petitioner in the instant case, further it is the complainant who delegates the power would be doing so at his own risk. Further, the learned Counsel for the petitioner also relied upon the decision in (2006)5 SCC 530 , wherein the Supreme Court with regard to permission to continue prosecution after the complainant’s death and right of legal heirs of deceased complainant has held that they can file petition under Section 302 of Cr. P.C. seeking permission and if such permission is sought by the said heirs, the same has to be considered in its perspective by the Court dealing with the matter. As regards a case pertaining to Section 495 of the Indian Penal Code, 1860, the law itself clearly states that it is only an aggrieved party who can present a petition. Such a situation does not arise in a complaint for an offence punishable under Section 138 of the Negotiable Instruments Act. 9. In the instant case, as I have already stated above that power of attorney holder can in fact present the complaint, but however in view of the law laid down by the Hon’ble Supreme Court in the Jimmy’s case, prosecution of the complaint should be necessarily after permission of the Court given to the complainant as provided under Section 302 of the Code of Criminal Procedure. Here in the instant case, the power of attorney holder himself has presented the case, he has stepped into the witness-box, given sworn statement and on the basis of the same, process has been issued as against the petitioner herein. The presentation of the complaint is by power of attorney. It is only on presentation of the complaint is by power of attorney. The presentation of the complaint is by power of attorney. It is only on presentation of the complaint is by power of attorney. It is only on presentation of the complaint, permission will have to be sought under Section 302 of the Code to prosecute the case as such the presentation of the complaint cannot be held to be bad in law. The complainant can make an application seeking permission to authorise his representative or power of attorney holder to prosecute the complaint after presentation of the complaint presented either by himself personally or through his agent and if such permission is refused he can opt to prosecute the case personally in his individual capacity as such presentation of complaint by agent or power of attorney does not vitiate the proceedings. But in the present case granting liberty to the complainant to seek permission to prosecute the case through power of attorney or to opt to prosecute the case personally would not serve any purpose. Since offence under Section 138 of the Negotiable Instruments Act is punishable with two years imprisonment and as such cognizance will have to be taken within three years which period cannot be extended condoning the delay in taking cognizance as such the following order. 10. The petition is allowed. The order of issue of process for the offence under Section 138 of the Negotiable Instruments Act is set aside. The entire proceedings are quashed. 11. The assistance rendered by Sri F.V. Patil, appointed as Amicus Curiae is placed on record and his fee is fixed at Rs.5,000/- (Rupees Five Thousand only) which shall be paid by the Government.