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2009 DIGILAW 262 (CAL)

Arbee International v. STATE OF WEST BENGAL

2009-03-27

P.S.DATTA

body2009
Judgment :- (1) The appellant was the complainant in case No. C-747/03 under section 138 of NI Act before the learned Metropolitan Magistrate, 11th Court, Calcutta. The accused was the respondent No. 21 herein. Learned Magistrate examined the accused under section 251 of Cr. PC, recorded the evidence of the witnesses, examined the accused under section 313 of Cr. PC and then passed an order dismissing the complaint and acquitting the accused only on the ground that P.W. 1 filed the complaint on behalf of the complainant on the strength of letter of authority did not depose in the case and moreover did not sign the petition of complaint and P.W.1 cannot be said to be the authorized person to depose on behalf of the complainant. The learned Magistrate in support of his reasoning relied on decision of this Court in Prasanta Kr. Basu vs. Narandra Kr. Anchalia and Anr., reported in 2007(1) C.Cr. LR (Cal) 136. There the learned Single Judge of this Court held that no permission of the Court was obtained by the proprietor to have his complaint filed through his agent. Learned Single Judge referred to a judgment of the Andhra Pradesh High Court (2006) DCR 229 where, it was held that power of attorney holder of a payee or a holder in due course, can file complaint only after obtaining permission of the Court either before or after filing of the complaint. The learned Single Judge further referred to a decision of the Madras High Court reported in 2005(2) DCR 439 . On the strength of the decisions, the learned Magistrate observed that since the petition of complaint was filed without any permission of the Court, it is incompetent and not maintainable. (2) Mr. Ayan Bhattacharyya, learned Advocate appearing for the appellant referred to the decision in Shankar Finance and Investments vs. State of A.P. and Ors., reported in 2008(3) E Cr. N (SC) 390, where Their Lordships of the Supreme Court at para 9 of the judgment held that attorney holder is the agent of the grantor and if authorized by the grantor, he can initiate legal proceedings. The view of the Andhra Pradesh High Court that power of attorney holder can not file complaint, was not approved of. N (SC) 390, where Their Lordships of the Supreme Court at para 9 of the judgment held that attorney holder is the agent of the grantor and if authorized by the grantor, he can initiate legal proceedings. The view of the Andhra Pradesh High Court that power of attorney holder can not file complaint, was not approved of. Their Lordships of the Supreme Court further observed at para 10 of the judgment as follows: "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 chargesheet submitted by the police after investigation on a First Information Report by one Bhattacharya, Mains Superintendent of Patna Electric Supply Co. (PES Co. short). An objection was raised by the accused that the prosecution was incompetent as it was 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 PES Co., however, is a body corporate and must act only through its Directors or officers. Here we have the evidence of Ramaswami to the effect that he held a general power of attorney from the PES Co., and that he was specifically empowered thereunder to act on behalf of PES 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." (3) Now it is submitted by Mr. Bhattacharyya that the case of Prasanta Kumar Basu which was decided by the Single Judge of this Court has been taken to Supreme Court in appeal which is said to be pending. This Court as early as in 1993 decided this point in the line of the Supreme Court decision as we find in Shankar Finance. This was Sk. Bhattacharyya that the case of Prasanta Kumar Basu which was decided by the Single Judge of this Court has been taken to Supreme Court in appeal which is said to be pending. This Court as early as in 1993 decided this point in the line of the Supreme Court decision as we find in Shankar Finance. This was Sk. Abdur Rahim and Anr. vs. Amal Kumar Banerjee and Anr., reported in 1993 C Cr. LR (Cal) 225, where a learned Judge of this Court with the aid of the decision of the Supreme Court in AIR 1956 SC 604 , held that power-of-attorney holder has the authority to file complaint on behalf of the principal and there is nothing in section 142 of the NI Act which can be taken to have abrogated the general right of a person to authorize his agent to make the complaint on his behalf under the said section. Now the old decision of the Supreme Court is Ravulu Subba Rao and Ors. vs. Commr. of Income-tax, Madras, reported in AIR 1956 SC 604 , which has been followed by the Single Judge of this Court in Sk. Abdur Rahim. Further Shankar Finance refers to another judgment of the Supreme Court in Ram Chandra Prasad Sharma and Ors. vs. State of Bihar and Anr., reported in AIR 1967 SC 349 , where Their Lordships of the Supreme Court has said that a power-of-attorney holder can file complaint on behalf of the principal. (4) Learned Counsel for the respondent submitted that P.W. 1 does not have any business relation with the principal and it is not explained how he could be an authorized agent of principal. To be a power-of-attorney holder it is not necessary that he has to have some commercial, dealings or business term with the principal. In evidence of P.W. 1, it appears that he claims to have been acquainted with the facts and circumstances of the case. Learned Counsel for the respondent further submits that the letter of authority on the basis of which the complaint was filed cannot be said to be an appropriate and legal power-of-attorney. This is a question which I must not answer here in this application because since I have decided to remand the matter to the learned Trial Court asking the Court to write a fresh judgment. This is a question which I must not answer here in this application because since I have decided to remand the matter to the learned Trial Court asking the Court to write a fresh judgment. I must not make any observation that can precipitate or influence the learned Magistrate. Now in this respect, Mr. Bhattacharyya has referred to the definition of power-of-attorney as it appears in section 1A of the Power of Attorney Act, 1882 which is power-of-attorney includes any instruction empowering a specific person to act for and in the name of person executing it. Now it appears that the learned Magistrate has not been apprised of the correct position of law which has been dealt with in Shankar Finance and the other decision which has referred in the body of judgment. (5) Therefore, I allow the appeal and set aside the judgment and order of the learned Magistrate and direct the learned Magistrate to hear the learned Advocates afresh and pass judgment in accordance with law covering all the issues of fact and law. (6) I once again make it clear that I have not gone into the merits of the case of either of the parties and whatever I have held here is only for the purpose of the disposal of the appeal. (7) As prayed for, learned Advocates for both the parties, the learned Magistrate will dispose of the case as expeditiously as possible preferably within a period of one month from the date of the communication of the order. (8) Criminal Section is directed to supply certified copy of this order, if applied for, to the learned Advocates for the parties expeditiously. Appeal allowed.