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2009 DIGILAW 197 (RAJ)

Adesh Saint v. Pramod Bhatnagar

2009-01-21

MAHESH CHANDRA SHARMA

body2009
JUDGMENT Hon'ble SHARMA, J.—This revision petition has been filed by the complainant Adesh Saint, against the order dated August 17, 2002 of Additional Sessions Judge No.4, Kota whereby revision No. 33 of 2002 was allowed and rejected the application under Section 138 of the Negotiable Instrument Act and the order dated January 31, 2002 of Additional Chief Judicial Magistrate No.2, Kota was set aside. 2. Brief facts of the case are that a complaint under Section 138 of the Negotiable Instrument Act was filed in the Court of Additional Chief Judicial Magistrate No. 2, Kota by the petitioner Adesh Saint through power of attorney holder Smt. Shanti Saint, his mother, against the respondent Dr. Pramod Bhatnagar stating that the respondent has taken an amount of Rs. 50,000/- as loan from the petitioner and against this a cheque was given to the petitioner by Pramod Bhatnagar on August 12, 1999. The petitioner submitted the cheque in the concerned Bank and the same was bounced and returned with endorsement that "Account is closed". On this complaint the trial Court recorded the statement of power of attorney holder of the petitioner and passed the cognizance order on September 29, 2000 for the offence under Section 138 of the Negotiable Instrument Act. After one year of passing of the order taking cognizance the non-petitioner moved an application before the trial Court stating therein that as the cheque was returned with the endorsement of "account closed" it does not come in the purview of the provisions of Section 138 of the negotiable Instrument Act and the cognizance order dated September 29, 2000 may be set aside. This application was rejected by the trial Court on merits on January 31, 2002. Against the order dated January 31, 2002 the respondent preferred a criminal revision before the Court of Sessions with the prayer for setting aside the cognizance order and the dismissing the complaint. The revision petition was allowed by the order dated August 17, 2002 and the revision Court dismissed the complaint filed by the petitioner under Section 138 of the Negotiable Instrument Act. Hence, this revision petition has been filed. 3. I have heard the learned counsel for the parties. 4. Mr. The revision petition was allowed by the order dated August 17, 2002 and the revision Court dismissed the complaint filed by the petitioner under Section 138 of the Negotiable Instrument Act. Hence, this revision petition has been filed. 3. I have heard the learned counsel for the parties. 4. Mr. Rohan Jain, the learned counsel for the petitioner contended that the trial Court was justified in taking cognizance against the non-petitioner on the complaint filed by the petitioner under Section 138 of the Negotiable Instrument Act and the order of the revisional Court dated August 17, 2002 deserves to be quashed and set aside. The revisional Court dismissed the complaint of the petitioner only on the ground that the complaint was filed by the power of attorney of the petitioner and according to Section 142 of the Negotiable Instrument Act by payee on holder on the cheque can file the complaint. But the revisional Court wrongly interpreted the law and passed the order basing on wrong findings. It is well settled law that every person who is 'Sui Juris' has a right to appoint an agent for any purpose whatever and that he can do so where he is exercising a statutory right and not less than when he is exercising any other right. The word agent has been defined in Section 182 of the Indian Contract Act as a person employed to do any act for another or to represent another in dealing with the third person the person for whom such act is done or who is so represented is called the principal. He has placed reliance on Janki Vashdeo Bhojwanai and another vs. Indusind Bank Ltd. and others ( AIR 2005 SC 439 ) and Shankar Finance and Investments vs. State of Andhra Pradesh and others (2008) 8 SCC 536 , Anirudhan vs. Philip Jacob (2007(1) Crimes 558 and M/s. G.J. Packaging Private Ltd. and another vs. M/s. S.S. Sales and another (2006(2) Crimes 270). 5. On the other hand, learned counsel for the respondent Mr. S.K. Jain argued that the revisional Court on the basis of the case reported in 2002 Cr.L.J. 262) rightly quashed the order of the trial Court. The order of the revisional Court is perfectly justified. 6. The Apex Court in Shankar Finance and Investment vs. State of Andhra Pradesh held as under : 9. S.K. Jain argued that the revisional Court on the basis of the case reported in 2002 Cr.L.J. 262) rightly quashed the order of the trial Court. The order of the revisional Court is perfectly justified. 6. The Apex Court in Shankar Finance and Investment vs. State of Andhra Pradesh held as under : 9. The next question is where a proprietary concern carries on business through an attorney holder, whether the attorney holder can lodge the complaint? 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 personal 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; and (iii) the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor. It follows that in this case the complaint could have been validly filed by describing the complainant in any one of the following four methods : "Atmakuri Shankara Rao, sole proprietor of M/s. Shankar Finance and Investment" or "M/s. Shanker Finance and Investments a sole proprietary Concern represented by its proprietor Atmakuri Shankarao Rao" Or Atmakuri Shankara Rao, sole proprietor of M/s. Shankar Finance and Investments, represented by his Attorney Holder Thamak Satyanarayana" Or "M/s. Shankar Finance and Investments, a proprietary concern of Atmakuri Shankara Rao, represented by his Attorney Holder Thamada Satyanarayana". What would have been improper is for the Attorney holder Thamada Satyanarayana to file the complaint in his own name as if he was the complainant. 10. This Court has always recognized that the power of Attorney holder can initiate criminal proceedings on behalf of his Principal. In Ram Chander Prasad Sharma vs. State of Bihar and Anr. ( AIR 1967 SC 349 ), the prosecution was commenced in regard to tampering of electric meter seals, with a charge-sheet submitted by the police after investigation on a first information report by one Bhattacharya, Mains Superintendent of Patna Electric Supply Co. In Ram Chander Prasad Sharma vs. State of Bihar and Anr. ( AIR 1967 SC 349 ), the prosecution was commenced in regard to tampering of electric meter seals, with a charge-sheet submitted by the police after investigation on a first information report by one Bhattacharya, Mains Superintendent of Patna Electric Supply Co. ('PES Co.' for short". An objection was raised by the accused that the prosecution was incompetent as it as not launched by a person competent to do so. The said objection was based on Section 50 of the Indian Electricity Act, 1910, which provided that no prosecution shall be instituted against any person for any offence against that Act or any rule, licence or order thereunder, except at the instance of the Government or an Electric Inspector, or of a person aggrieved by the same. This Court held : ". . . The P.E.S. Co., however, is a body corporate and must act only through its directors of Officers. Here we have the evidence of Ramaswami to the effect that he held a general power of attorney from the P.E.S. Co., and that he was specifically empowered there under to act on behalf of P.E.S. Co., in all legal proceedings. The evidence shows that it was at his instance that Bhattacharya launched that first information report and, therefore, it would follow that the law was set in motion by the "person aggrieved". The objection based on Section 50 must, therefore, be held to be untenable." 11. The assumption of the High Court that where the payee is a proprietary concern, the complaint can be signed only by the proprietor of the proprietary concern and not by a Power of Attorney holder of the proprietor, is not sound. It is not in dispute that in this case a power of attorney has been granted by Atmakuri Shankara Rao, as Proprietor of M/s. Shankar Finance and Investments in favour of Thamada Satyanarayana and the same was produced along with the complaint. The description of the complainant is as under : "M/s. Shankar Finance and Investments, (a proprietary concern of Sri Atmakuri Sankara Rao S/o Late Sri A.B. Rama Murthy, Hindu, aged about 65 years), having its office at Flat No. 3B, Third Floor, Maharaja Towers. The description of the complainant is as under : "M/s. Shankar Finance and Investments, (a proprietary concern of Sri Atmakuri Sankara Rao S/o Late Sri A.B. Rama Murthy, Hindu, aged about 65 years), having its office at Flat No. 3B, Third Floor, Maharaja Towers. Vishakhapatnam - 3 represented by its Power of Attorney Holder Sri Thamada Satyanarayana S/o Late Adinarayana, Hindu, aged 50 years, Service, residing at MIG-B-230, Sagarnagar, VUDA Layout, Vishakhapatnam - 43." The said description is proper and therefore, the complaint has been duly filed by the payee. 12. The High Court has referred to the fact that the sworn statement before the learned Magistrate was of the attorney holder of the payee and not by the payee in person. According to the tenor of the order of the High Court, this was also irregular. But we find nothing irregular in such a procedure. It is now well settled that the object of Section 200 of the Code is providing for examination of the complainant and his witnesses by the Court is to satisfy itself about the existence of a prima facie case against the person accused of the offence and to ensure that such person is harassed by false and vexatious complaints by issue of process; (See Nirmaljit Singh Hoon vs. State of West Bengal - 1973(3) SCC 753 ). Where the proprietor of the proprietary concern has personal knowledge of the transaction and the proprietor has signed the complaint, he has to be examined under Section 200 of the Code. A power of attorney holder of the complainant who does not have personal knowledge, cannot be examined. But where the attorney holder of the complainant is in charge of the business of the payee - complainant and the Attorney holder alone is personally aware of the transactions, and the complaint is signed by the attorney holder on behalf of the payee-complainant, there is no reason why the attorney holder cannot be examined as the complainant. We may, in this connection, refer to the decision of this Court in Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. ( 2005(2) SCC 217 ), where the scope of an attorney holder 'acting' on behalf of the principal in a civil suit governed by Code of Civil Procedure was examined. We may, in this connection, refer to the decision of this Court in Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. ( 2005(2) SCC 217 ), where the scope of an attorney holder 'acting' on behalf of the principal in a civil suit governed by Code of Civil Procedure was examined. This Court observed : "Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3 Rule 1 and 2 CPC confines only to in respect of "acts" done by them 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 can have a personal knowledge and in respect of which the principal is entitled to be cross-examined." The principal underlying the said observations will apply to cases under Section138 of the Act. In regard to business transactions of companies, partnerships or proprietary concerns, many a time the authorized agent or attorney holder may be the only person having personal knowledge of the particular transaction; and if the authorized agent or attorney-holder has signed the complaint, it will be absurd to say that he should not be examined under Section 200 of the Code, and only the Secretary of the company or the partner of the firm or the proprietor of a concern, who did not have personal knowledge of the transaction, should be examined. Of course, where the cheque is drawn in the name of the propreitor of a proprietary concern, but an employee of such concern (who is not an attorney holder) has knowledge of the transaction, the payee as complainant and the employee who has knowledge of the transaction, may both have to be examined. Be that as it may. In this case we find no infirmity." 7. Be that as it may. In this case we find no infirmity." 7. On the basis of above principles laid down by Hon'ble the Apex Court the power of attorney holder is entitled to file the complaint and the order passed by the Addl. Sessions Judge is illegal and the same is quashed. 8. For these reasons I set aside the order dated August 17, 2002 of the Addl. Sessions Judge No. 4 Kota passed in Criminal Revision No. 33 of 2002 and the trial Court is directed to proceed in accordance with law. As the main petition has been disposed, the stay application also stands disposed of.