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2018 DIGILAW 137 (UTT)

Suchit Narang v. State of Uttarakhand

2018-03-27

V.K.BIST

body2018
JUDGMENT : V.K. Bist, J. Heard learned counsel for the parties. 2. This Criminal Revision is directed against the judgment and order 17.05.2012 passed by the learned District & Sessions Judge, Dehradun, in Criminal Revision No. 03/65 of 2012 “Dalveer Singh Vs. State and another”, whereby the criminal revision filed by the respondent no. 2 against the summoning order dated 07.06.2010 passed by the Judicial Magistrate 1st, Dehradun was allowed by the learned District & Sessions Judge, Dehradun and summoning order was quashed. 3. Heard learned counsel for the parties and perused the lower court’s record. 4. Facts, in brief, are that, on 31.03.2009, the respondent no. 2 issued cheque no. 842363 dated 31.03.2009 of Rs.3,20,000/- drawn upon HDFC Bank Ltd., 56 Rajpur Road, Dehradun in favor of the complainant Mr. Suchit Narang (revisionist) towards part payment of dues. The complainant (revisionist) presented the cheque for encashment through his banker the Urban Cooperative Bank Ltd., Dehradun; but, the said cheque was dishonored for the reason “fund insufficient” and the said unpaid cheque was returned vide its memo dated 28.05.2009. After receiving the memo of the bank dated 28.05.2009, the complainant/revisionist, under Section 138 (b) of the Negotiable Instruments Act, sent a notice dated 09.06.2009 within a stipulated period, through his counsel Mr. M.K. Naglia, Advocate by registered A.D. post, at the known address of the respondent no. 2 and made a demand for payment of the amount of the said cheque within 15 days from the receipt the said notice. When neither the acknowledgment nor the postal envelope containing the said notice was returned back, then the complainant made an enquiry from the Postal Department. The Postal Department, vide its letter no. 24800105383 dated 17.7.2009, intimated that said notice was delivered to the respondent no. 2 on 10.06.2009. According to the revisionist, the respondent no. 2, in spite of service of notice, did not make payment of the amount of the said cheque to the complainant/revisionist and, thus, committed offence punishable under Section 138 N.I. Act. As per letter dated 17.07.2009 of the Postal Department, the notice was served upon the respondent no. 2 on 10.06.2009. Therefore, the cause of action arose after 15 days i.e. 25.06.2009 and under Section 142 (b) of the N.I. Act, the complaint was to be filed within one month i.e. by 25.07.2009. The complaint was filed on 20.7.2009, within the stipulated period. 2 on 10.06.2009. Therefore, the cause of action arose after 15 days i.e. 25.06.2009 and under Section 142 (b) of the N.I. Act, the complaint was to be filed within one month i.e. by 25.07.2009. The complaint was filed on 20.7.2009, within the stipulated period. According to the revisionist, the revisionist/complainant Mr. Suchit Narang is visually impaired by birth and it is not possible for him to file a complaint, therefore, he authorized his real brother Mr. Sumit Narang, through power of attorney, to file complaint before the Court concerned and also authorized him to give the statement as complainant and swear the affidavit to do everything related thereto. The power of attorney holder of Mr. Suchit Narang i.e. Mr. Sumit Narang filed the complaint on 20.07.2009 and also filed his affidavit under Section 145 of N.I. Act. According to the revisionist, it is apparent from the bare perusal of Section 145 of N.I. Act that such affidavit can be read in evidence in any enquiry, trial or other proceedings under the said Act. After considering the complaint and affidavit in support of the complaint and other material on record, the learned Judicial Magistrate 1st Dehradun, summoned the respondent no. 2 on 07.06.2010. Feeling aggrieved by the summoning order dated 07.06.2010, the respondent no. 2 preferred a Criminal Revision before the Revisional Court. On 17.05.2012, the learned Revisional Court allowed the revision and set aside the summoning order dated 07.06.2010. Aggrieved by the order dated 17.05.2012, present revision has been filed. 5. Learned counsel for the revisionist submitted that, under Section 2(d) of Cr.P.C., there is no particular format for complaint. A petition addressed to the Magistrate, containing allegation that an offence has been committed and ending with a prayer that the culprit may be suitably dealt with. As such, it is clear that any person can file a complaint before the Magistrate concerned without giving the all details. To buttress his argument, he relied on the judgment of the Hon’ble Apex Court in the matter of Moh. Yousuf vs. Afaq Jahan (Smt.) and another, reported in (2006) 1 SCC (Cri.) 460. Paragraph no. 15 of the said judgment reads as under: “15. A faint plea was made by learned counsel for the respondent No.1 that the petition filed by the appellant was not a complaint in strict sense of the term. The plea is clearly untenable. Yousuf vs. Afaq Jahan (Smt.) and another, reported in (2006) 1 SCC (Cri.) 460. Paragraph no. 15 of the said judgment reads as under: “15. A faint plea was made by learned counsel for the respondent No.1 that the petition filed by the appellant was not a complaint in strict sense of the term. The plea is clearly untenable. The nomenclature of a petition is inconsequential. Section 2(d) of the Code defines “complaint” as follows: “2. (d) ‘Complaint’ means any allegation orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation:- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.” 6. It is the further case of the revisionist that he is visually impaired by birth and it is not possible for him to file a complaint himself, therefore, he authorized his real brother, namely, Mr. Sumit Narang, through power of attorney, to file a complaint before the Court concerned and also authorized him to give the statement as complainant and to swear the affidavit to do everything related thereto. It is submitted by the learned counsel appearing for the revisionist that the revisionist/complainant Mr. Suchit Narang has given power attorney to his brother Mr. Sumit Narang and has allowed him to file the complaint and to appear and verify on oath before the Court in order to prove the contents of complaint for the purpose of issue of process for the offence punishable under Section 138 of the N.I. Act, and in the affidavit Mr. Sumit Narang has sworn that, being a power attorney holder of complainant Mr. Suchit Narang, he is fully conversant to the facts deposed therein. He also swore on oath that Mr. Suchit Narang, being visually impaired, had given power of attorney to him. He submitted that said affidavit of Mr. Sumit Narang can be read as evidence under Section 145 of the N.I. Act. Therefore, it is clear that Mr. Suchit Narang, he is fully conversant to the facts deposed therein. He also swore on oath that Mr. Suchit Narang, being visually impaired, had given power of attorney to him. He submitted that said affidavit of Mr. Sumit Narang can be read as evidence under Section 145 of the N.I. Act. Therefore, it is clear that Mr. Sumit Narang was personally aware of the transaction and there is no reason as to why the attorney holder cannot depose himself as a witness. In order to give strength to his argument, learned counsel for the revisionist placed reliance on the judgment of three Judges Bench of the Hon’ble Apex Court in the matter of A.C. Narayanan Vs. State of Maharashtra and another, reported in (2014) 11 SCC 790 , wherein it is held that under Section 145 of the N.I. Act, it is open to Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I. Act. 7. Learned counsel for the revisionist submitted that the Magistrate, after considering the complaint and affidavit (under Section 145 of the N.I. Act) and other material on record, summoned the respondent no. 2; but, the learned Revisional Court committed illegality in re-assessing the evidence on record and interfered with the finding of fact which was recorded by the Magistrate on the basis of record which is not permissible in law. He argued that, under Section 397 of Cr.P.C, the learned Revisional Court has only power to remand the matter to the Magistrate after giving the finding regarding the fact; but, it has no power to quash the summoning order passed by the Magistrate. 8. On the other hand, Mr. Piyush Garg, learned counsel appearing for the respondent no. 2 submitted that the order impugned needs no interference of this Court and the revision filed by the revisionist deserves to be dismissed. 9. I have considered the submission advanced by the learned counsel for the parties and have perused the papers available on record. 10. This Court finds that the learned District & Sessions Judge allowed the revision by observing that the complaint was neither signed by the complainant nor presented by him. Rather, same has been done by his power of attorney holder. This issue has been dealt by the Hon’ble Supreme Court in various judgments. 10. This Court finds that the learned District & Sessions Judge allowed the revision by observing that the complaint was neither signed by the complainant nor presented by him. Rather, same has been done by his power of attorney holder. This issue has been dealt by the Hon’ble Supreme Court in various judgments. In (2014) 11 SCC 790 - A.C. Narayanan vs. State of Maharastra and another, the Hon’ble Supreme Court observed as follows: “28. The power of 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 such 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 by the proprietor of the proprietary concern, describing himself as the sole proprietor of the payee, the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor, and the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor. However, we make it clear that the power of attorney holder cannot file a complaint in his own name as if he was the complainant. In other words, he can initiate criminal proceedings on behalf of the principal. 29. From a conjoint reading of Sections 138, 142 and 145 of the N.I. Act as well as Section 200 of the Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the Court and to examine him upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. For the purpose of issuing process under Section 200 of the Code, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I. Act. It is only if and where the Magistrate, after considering the complaint under Section 138 of the N.I. Act, documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness is required, the Magistrate may call upon the complainant to remain present before the Court and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. 30. In the light of the discussion, we are of the view that the 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. An exception to the above is when the power of attorney holder of the complainant does not have a personal knowledge about the transactions then he cannot be examined. However, where the attorney holder of the complainant is in charge of the business of the complainant payee and the attorney holder alone is personally aware of the transactions, there is no reason why the attorney holder cannot depose as a witness. Nevertheless, an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint. On this count, the fourth question becomes infructuous.” In (2009) 12 SCC 706 , Praveen vs. Mohd. Tajuddin, the Hon’ble Supreme Court clarified the issue in the following manner: “2. The question whether the signing of complaint by the payee himself is a sine qua non for taking cognizance of offence under Section 138 of the Act is no longer res integra. Tajuddin, the Hon’ble Supreme Court clarified the issue in the following manner: “2. The question whether the signing of complaint by the payee himself is a sine qua non for taking cognizance of offence under Section 138 of the Act is no longer res integra. In Shankar Finance and Investments v. State of A.P. this Court interpreted Section 142 of the Act and held that a complaint under Section 138 can be filed by the payee through his power-of attorney holder.” 11. In the present case, the complainant executed power of attorney in favour of his real brother authorizing him to do following acts on his behalf: “1. To file complaints on behalf of Shri Suchit Narang as Power of Attorney and sign the same, give statement as complainant and to do everything related thereto. 2. To pursue the case and appear on my behalf in any court of law. 3. To sign, verify and file all papers, statements and documents etc. before any court. 4. To appoint Advocate/s and to sign Vakalatnama. 5. To compound or withdraw the case or to get the same finally decided. 6. To apply for certified copies and to take back from court all papers and documents etc. 7. To deposit and receive money. 8. To receive the costs. 9. To swear affidavits. 10. To file any appeal or revision. 11. To do all acts and make all applications and appearances as may be necessary for the proper conduct of case either himself or thru Advocate/s. 12. And generally to take all steps thereto which are necessary.” 12. In pursuance of said power of attorney, the power of attorney holder pursued the case on behalf of complainant. It is not the case where complaint was filed in the name of power of attorney holder. Complaint was rightly filed in the name of person in whose favour cheque was issued. Non signing of the compliant by the complainant does not mean that complaint is defective. Power of attorney was executed by the revisionist authorizing his real brother to sign and file the complaint on his behalf and also for the purpose of signing the required affidavit. It is settled position of law that complaint can be filed through power of attorney holder. Thus, in the present case, no illegality was committed in filing the complaint. Power of attorney was executed by the revisionist authorizing his real brother to sign and file the complaint on his behalf and also for the purpose of signing the required affidavit. It is settled position of law that complaint can be filed through power of attorney holder. Thus, in the present case, no illegality was committed in filing the complaint. The learned Magistrate rightly took the cognizance and issued summoning order. In my view, the learned District & Sessions Judge has not exercised the jurisdiction in the manner he should have exercised the same. 13. Consequently, the revision is allowed. Judgment and order dated 17.05.2012 passed by the learned District & Sessions Judge, Dehradun, in Criminal Revision No. 03/65 of 2012 “Dalveer Singh Vs. State and another is set-aside.