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2019 DIGILAW 396 (ORI)

Mahesh Verma v. Future Technologies

2019-05-17

J.P.DAS

body2019
JUDGMENT : J.P. DAS, J. 1. This common order shall dispose of the aforesaid three applications filed under Section 482 of the Code of Criminal Procedure (in short 'the Cr.P.C.) assailing the order of cognizance passed by the learned S.D.J.M., Bhubanswar in three separate complaint petitions filed by the opposite party in all the three cases, under Section 138 of the Negotiable Instruments Act (in short 'the N.I. Act') alleging bouncing of three cheques issued by the present petitioner in favour of the complainant-opposite party. 2. The factual scenario is not in dispute. The present petitioner issued three separate cheques in favour of the opposite party, a proprietorship firm amounting to Rs.25,800/-, Rs.52,090/- and Rs.41,100/- towards value of certain goods received by him from the opposite party-complainant in course of business transactions. The three cheques were placed in Bank by the opposite party but all the three cheques were bounced with the note "EXCEEDS ARRANGEMENT". Thereafter since the petitioner did not pay the amount despite notices, three separate petitions were filed in respect of three cheques by the present opposite party-firm represented by its Constituted Attorney Shri Mahendra Kumar Pradhan, Law Officer of the complainant firm. Learned S.D.J.M., Bhubaneswar taking initial statement of the legal presentative passed the impugned order of cognizance in all the three cases and directed for issuance of summons to the present petitioner as accused. 3. The sole ground on which the present three applications have been filed assailing the order of cognizance is that although the complaint petition was filed by the Power of Attorney holder of the proprietorship firm, still learned S.D.J.M., Bhubaneswar took cognizance of the offence ignoring the mandatory requirements in a case where the complaint is filed by the Power of Attorney holder and hence, the impugned order of cognizance in all the three cases is illegal and is liable to be set aside. In the application, it was submitted that the Power of Attorney holder could not have filed the complaint in absence of the complainant, namely, the proprietor of the firm as the payee of the cheques, apart from the facts that the Power of Attorney holder did not file the Power of Attorney before the court along with the complaint petition nor the permission of the court was sought for to file the complaint by the Power of Attorney holder. It was also submitted that the learned S.D.J.M., Bhubaneswar did not have territorial jurisdiction to take cognizance of the offence in the cases. However, at the time of submission, it was fairly conceded by learned counsel for the petitioner that as per the settled positions of law, the Power of Attorney holder can maintain a complaint before the court and the court of learned S.D.J.M., Bhubaneswar has territorial jurisdiction to the application. The only contention that was advanced by learned counsel for the petitioner was that as per the settled position of law, when a complaint petition is filed by the Power of Attorney holder, the said Power of Attorney must be placed before the court for perusal by the concerned court and the Power of Attorney holder should take permission of the court to file the complaint on behalf of the payee and in the last but not the least, the Power of Attorney holder must have personal or direct knowledge about the transactions with specific mention in that regard in the complaint petition. It was submitted that all these requirements having not been complied with in the three cases, learned S.D.J.M., Bhubaneswar erred in law by taking cognizance of the offence against the petitioner as accused. 4. Per contra, it was submitted by learned counsel for the opposite party that the complaint petition was duly filed by the legal representative of the proprietorship firm and Shri Mahendra Kumar Pradhan working for gain as Law Officer of the firm was duly authorized to prosecute the accused under Section 138 of the N.I. Act in respect of the bounced cheques. It was further contended that the Power of Attorney duly executed by the proprietor of the firm was also brought on record. Thus, it was submitted that all the three complaints were duly filed complying with all the requirements and hence, the order of cognizance is unassailable. 5. Learned counsel for the petitioner relied upon the decision of the Hon'ble Apex Court in the case of Shankar Finance and Investments vrs .State of Andhrapradesh and others, (2009) 1 DCR 27 wherein Hon'ble Apex Court observed that the Power of Attorney holder can validly file the complaint if he has personal knowledge of the particular transactions. 5. Learned counsel for the petitioner relied upon the decision of the Hon'ble Apex Court in the case of Shankar Finance and Investments vrs .State of Andhrapradesh and others, (2009) 1 DCR 27 wherein Hon'ble Apex Court observed that the Power of Attorney holder can validly file the complaint if he has personal knowledge of the particular transactions. Relying upon the observation, it was submitted that in the present case the complaint petitions were filed by one Mahendra Kumar Pradhan, who is an Advocate by profession but working for gain as Law Officer of the opposite party-firm. It was further submitted that no where in the complaint petitions as placed before the court, it has been even whispered that the said Power of Attorney holder had any personal knowledge about the transactions between the opposite party and the accused firm or he had performed any act relating to the said transactions. It was further submitted that admittedly, the Power of Attorney was not placed before the court along with the complaint petition nor it was mentioned in the list of the documents to be relied upon by the complainant. In this regard, the learned counsel for the petitioner placed reliance on a decision of the Delhi High Court in the case on Ravi Gupta vrs. R.C. Tiwari, (2009) 1 DCR 626 wherein it was held as follows:- "(i) A complaint under Section 138, N.I. Act can be filed by a complainant through a POA. (ii) However, the complainant will have to seek the permission of the Court concerned for pursuing the complainant through a POA. (iii) The leave of the Court to file the complaint through a POA can be sought by making an averment in the body of the complaint or by filing a separate application for that purpose along with the complaint. (iv) The complaint filed through a POA has to be accompanied by a copy of the deed of special or general POA executed by the complainant. Where the complainant is a company this requirement can be satisfied even after the filing of the complaint. (iv) The complaint filed through a POA has to be accompanied by a copy of the deed of special or general POA executed by the complainant. Where the complainant is a company this requirement can be satisfied even after the filing of the complaint. (v) The examination of the POA holder upon oath at the time of presentation of the complaint and reduction into writing the substance of such examination shall be sufficient compliance with of procedure contemplated under the Cr.P.C. It is unnecessary thereafter for the complainant to also be examined on oath on his appearance on a future date." 6. Learned counsel for the petitioner also relied upon another decision in the case of A.C. Narayanan vrs. State of Maharashtra and another, 2018 AIR SC 1198. In that case, in similar circumstances, it was observed that the learned Magistrate should not have taken cognizance without prima facie establishing the fact as to whether the Power of Attorney existed for the first place and whether it was in order. Further, the Power of Attorney holder had also not stated that he has filed the complaint having been instructed by payee or holder in due course of the cheques. In the instant case admittedly, Power of Attorney was not placed before the court at the time of taking cognizance and there is no mention in the complaint petitions that the Power of Attorney holder had any personal knowledge about the transactions between the parties. The only mention that finds place in this regard in the complaint petition is that "the opposite party-the proprietorship firm represented by its constituted Power of Attorney Shri Mahendra Kumar Pradhan working for gain as Law Officer authorized to prosecute under Section 138 of the N.I. Act." 7. Thus, on the touch stone of the principles as settled by different pronouncements, as referred to above, the contentions, as raised on behalf of the petitioner, are acceptable that the learned S.D.J.M., Bhubaneswar took cognizance of the offence under Section 138 of the N.I. Act in all the three cases without looking for the existence of any Power of Attorney or any material in that regard on record and personal knowledge of the Power of Attorney holder regarding the transactions. Hence, the impugned orders of cognizance in all the three cases are not sustainable in law 6. Hence, the impugned orders of cognizance in all the three cases are not sustainable in law 6. Accordingly, the impugned orders of cognizance dated 01.12.2008 in I.C.C. No.4311 of 2008 in CRLMC No.4109 of 2009, dated 01.12.2008 in I.C.C. No.4312 of 2008 in CRLMC No.4110 of 2009 and dated18.11.2008 in I.C.C. No.4126 of 2008 in CRLMC No.3326 of 2009 passed by the learned S.D.J.M., Bhubaneswar are set aside. All the three CRLMCs are disposed of accordingly.