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2015 DIGILAW 271 (ORI)

Gayadhar Jena v. Manoj Kumar Agrawal

2015-04-22

S.PUJAHARI

body2015
ORDER : Heard. 2. This revision is taken up for disposal on consent of the parties at the stage of admission. 3. This revision at the instance of the accused in I.C.C. Case No. 198 of 2013 on the file of learned S.D.J.M., Dhenkanal has been filed with a prayer to quash the proceeding inasmuch as the complainant therein had no locus standi to initiate the complaint and after taking cognizance of such complaint, the Court could not have allowed the prayer to amend the cause title at the instance of the complainant bringing into the record the fact that the same was filed on behalf of the person having locus standi to file the complaint. 4. Facts relevant for disposal of this revision are as follows: The opposite party filed the aforesaid complaint before the learned S.D.J.M., Dhenkanal alleging an offence under Section 138 of the Negotiable Instrument Act, 1881 (for short, "the N.I. Act") to have been committed by the present petitioner inasmuch as two cheques bearing nos. 553528, dated 01.03.2013 and 553829, dated 08.03.2013 drawn by the petitioner for Rs. 11 lakhs and 10 lakhs respectively in favour of the wife of the complainant-opposite party for discharge of the liability i.e., return of consideration money received to transfer landed property, on presentation were not honoured by the banker due to insufficiency of funds in the account and thereafter, though statutory notice was issued by the complainant-opposite party, the petitioner did repay the amount. 5. It appears that on such complaint, cognizance was taken, but after taking cognizance and issuance of process, the prayer for amendment was filed indicating to amend the cause title of the compliant petition that the same was filed on behalf of the payee of the cheque. The said amendment was allowed vide order dated 13.03.2014 (Annexure-4). The petitioner in this revision challenges such amendment to be unjust and improper and also the continuance of such proceeding to be illegal inasmuch as the complaint at the instance of the opposite party was not maintainable, in other words he was incompetent to lodge the complaint. 6. Learned counsel appearing for the petitioner drawing the notice of the Court to Section 142 of the Cr. P.C. has submitted that either the payee or the holder of the cheque in due course can maintain a complaint for commission of offence under Section 138 N.I. Act. 6. Learned counsel appearing for the petitioner drawing the notice of the Court to Section 142 of the Cr. P.C. has submitted that either the payee or the holder of the cheque in due course can maintain a complaint for commission of offence under Section 138 N.I. Act. Since the complainant-opposite party was neither the payee of the cheque nor a holder in due course though the cheque presented have bounced and he was looking after the entire transaction on behalf of his wife as alleged but he was incompetent to make the complaint on his own. Therefore, when a complaint was made by an incompetent person, the same was no complaint in the eye of law and as such cognizance could not have been taken by the Court. The order of cognizance and the proceeding as such is vitiated and liable to be quashed inasmuch as no subsequent amendment to the complaint petition could have saved such irregularity in the proceeding. Otherwise also, he has submitted there was no authorization by the payee to the opposite party in accordance with law to make such complaint. Hence, it has been submitted by him to quash the complaint. Reliance in this regard has been placed on the ratios laid down in the decisions of the Hon'ble Apex Court in the cases of A.C. Narayanan Vrs. State of Maharashtra and Anr., 2013 (II) OLR (SC) 884, reported in 2014 Cri.L.J. 576, Vinita S. Rao Vrs. M/s Essen Corporate Services Pvt. Ltd. & Anr., reported in (2014) 59 OCR (SC) 654, so also a decision of the Madras High Court in the case of Y. Vijayalakshmi alias Rambha, Petitioner Vrs. Manickam Narayanan, Respondent, reported in 2005 Cri. L.J. 3572 as well as in the case of T.J. Joy S/o Joseph and Ors. Vrs. Food Inspector and Anr. of Kerala High Court reported in 2008 Cri. L.J. 4643. 7. Manickam Narayanan, Respondent, reported in 2005 Cri. L.J. 3572 as well as in the case of T.J. Joy S/o Joseph and Ors. Vrs. Food Inspector and Anr. of Kerala High Court reported in 2008 Cri. L.J. 4643. 7. In response, it has been submitted by the learned counsel for the opposite party that there was no irregularity and illegality in the proceeding inasmuch as the opposite party had disclosed in the complaint that the said cheques were drawn by the petitioner in favour of his wife, but he was dealing with the matter and also authorized to do so and had also knowledge of the transaction and the error committed in disclosing the same in the cause title was an error in form by inadvertence which in the meantime has been corrected by the trial Court vide order dated 13.03.2014 passed in the amendment petition filed which is maintainable in the eye of law, in view of the law laid down in a decision reported in 2007 (II) OLR 80 in the case of Maa Jagadamba Traders Vrs. Goodlass Nerolac Paints, the proceeding is unquestionable on the ground of locus standi, more particularly, when Section 142 of N.I. Act does not speak that, a Court shall not 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 in person. The filing of the complaint by the person mentioned in Section through their attorney being not prohibited as revealed from the ration laid down in the cases relied upon by the petitioner, more particularly, in the case of A.C. Narayanan (supra), it has been submitted that this revision is devoid of merit. 8. In the case of Vishwa Mitter Vrs. O.P. Poddar reported in (1983) 4 SCC 71, it has been held as follows (para 5):- "It is thus crystal clear that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance under Section 190 and unless any statutory provision prescribes any special qualification or eligibility criteria for putting the criminal law in motion, no Court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. Section 190 of the Code of Criminal Procedure clearly indicates that the qualification of the complainant to file a complaint is not relevant. But where any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute." In AIR 1956 SC 604 (Rayulu Subbarao Vrs. I.T. Commr.), it has been observed at para 7 as follows: "7. According to the law of England-and that is also the law under the Indian Contract Act, 1872- "every person who is sui juris has a right to appoint an agent for any purpose whatever, and that he can do so when he is exercising a statutory right no less then when he is exercising any other right." Per Stirling J. in Jackson & Co. v. Napper: In re Schmidts'" Trade-Mark, (1886) 35 Ch D 162, at p. 172(C)." This rule is subject to certain well-known exceptions as when the act to be performed is personal in character, or is annexed to a public office, or to an office involving fiduciary obligations. But apart from such exceptions, the law is well settled that whatever a person can do himself, he can do through an agent. It has accordingly been held that "at common law, when a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it. But apart from such exceptions, the law is well settled that whatever a person can do himself, he can do through an agent. It has accordingly been held that "at common law, when a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it. Per Blackburn J. in The Queen v. Justices of Kent, (1873) 8 Q B 305, at p. 307 (D)" In a decision reported in 1994 (I) Bank Cas 314 (Hamsa v. Ibrahim), the Hon'ble Apex Court dealing with Section 142 of the N.I. Act held as follows:- "no inference can be drawn that Parliament never intended to allow the complaint to be filed through an agent or power of attorney holder of a payee of holder in due course" Placing reliance on the aforesaid decision of the Hon'ble Apex Court, the Madras High Court in the case of Y. Vijayalakshmi (supra) have held that a complaint at the instance of the general power of attorney is maintainable provided the complaint is signed by payee himself and there shall be also an affidavit of the complainant in proof of his execution on GPA; added to the production of the said Power of Attorney document and sworn statement of GPA besides the other stipulations. In the case of Vinita S. Rao (supra), the Hon'ble Apex Court have held that at the instance of power of attorney holder, a complaint is maintainable. In the case of A.C. Narayanan (supra), the Hon'ble Apex Court have also held that a power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the N.I. Act. However, when he does not have a personal knowledge about the transactions then he cannot be examined as a witness so also the attorney holder cannot file a complaint in his own name as if he was the complainant, but he can initiate criminal proceedings on behalf of his principal. 9. Therefore, the view of the Madras High Court that even if a complaint is maintainable at the instance of the attorney holder of the complainant, the complainant must file a complaint has been overruled by the aforesaid decision of the A.C. Narayanan (Supra). 10. 9. Therefore, the view of the Madras High Court that even if a complaint is maintainable at the instance of the attorney holder of the complainant, the complainant must file a complaint has been overruled by the aforesaid decision of the A.C. Narayanan (Supra). 10. It appears that without being alive to the facts and circumstances of the case, also oblivious to the law in this regard, the trial Court in a most mechanical manner took cognizance and issued process in this case. Therefore, the order of cognizance is set aside and the trial Court is directed to address the order of cognizance afresh considering the material available on record on the date it took cognizance of the offence and also the law in this regard within a period of two weeks of receipt of this order. Petitioner is at liberty to file a certified copy of this order before the learned S.D.J.M., Dhenkanal. However, the petitioner shall not have any chance of hearing of such order of cognizance as he is not otherwise entitled to the same. With the aforesaid order this criminal revision stands disposed of being allowed. Revision disposed of.