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2023 DIGILAW 311 (HP)

Satish Kumar v. Pawan Kumar

2023-05-26

JYOTSNA REWAL DUA

body2023
JUDGMENT : Jyotsna Rewal Dua, J. Cr.MP(M) No. 868 of 2023 Leave to appeal granted. The application to stand disposed of. Appeal be registered. Cr. Appeal No.212 of 2023 2. The appellant filed a complaint under Section 138 of the Negotiable Instruments Act (the Act in short) through his father and General Power of Attorney (GPA in short) Sh. Jagdish Chand. Learned Trial Court on 27.02.2023 dismissed the complaint on the ground that it did not satisfy the parameters concerning filing of complaint through GPA, laid down in (2014)11 SCC 790 (A.C. Narayanan Vs. State of Maharashtra and another). Feeling aggrieved, the appellant-complainant has preferred the present appeal. 3. Facts The appellant had preferred the complaint under section 138 of the Act through his father and GPA. It was submitted in the complaint that: - 3(i) The appellant-complainant was owner of a bus. On account of getting a job abroad, the appellant-complainant entered into an agreement with the respondent-accused on 22.09.2020. As per this agreement, the appellant-complainant handed over possession of the bus to the respondent-accused for plying at the agreed monthly rent of Rs.8000/-. 3(ii) On 15.10.2020, the respondent-accused visited the appellant-complainant at his house and expressed his need for loan of Rs.3,50,000/-. The respondent assured repayment of entire amount in June 2021. At the request of the respondent, the appellant-complainant paid him Rs.3,50,000/-. The respondent-accused also had the financial liability of Rs.70,000/- towards the appellant -complainant on account of rent of the bus for a period of six months. Thus, in all, a sum of Rs. 4,20,000/- was to be paid by the respondent-accused to the appellant-complainant. In lieu of Rs. 4,20,000/-, the respondent-accused issued a cheque to the appellant-complainant drawn from Punjab National Bank. 3(iii) The respondent-accused did not return the loan amount. As per instructions of the respondent-accused, the appellant-complainant in the month of June, 2021 presented the cheque in his bank. The same was returned unpaid for the reasons “drawer’s signatures differ”. 3(iv) On behalf of the appellant-complainant, his GPA Sh. Jagdish Chand appeared in the witness box as CW-1. He also tendered in evidence, the documents Ex.C-1 to Ex.C-7 i.e. affidavit, cheque, return memo. demand notice, postal receipt, RAD and track consignment. The copy of GPA was marked as ‘X’. The respondent-accused was examined under Section 313 of the Code of Criminal Procedure. He denied borrowing any money from the appellant-complainant. He also tendered in evidence, the documents Ex.C-1 to Ex.C-7 i.e. affidavit, cheque, return memo. demand notice, postal receipt, RAD and track consignment. The copy of GPA was marked as ‘X’. The respondent-accused was examined under Section 313 of the Code of Criminal Procedure. He denied borrowing any money from the appellant-complainant. He, however, admitted financial liability of Rs.24000/- towards the appellant-complainant on account of rent of the bus. The respondent-accused produced one Sultan Singh in his defence, who was examined as DW-1. 3(v) On considering the entire case, learned Trial Court dismissed that the complaint filed by the appellant-complainant Satish Kumar through his father and GPA Sh. Jagdish Chand. In the given facts of the case and the evidence adduced by the parties and on considering the law in A.C. Narayanan’s case supra, the complaint was held to be not proper. The respondent-accused was acquitted from the accusation of having committed offence punishable under Section 138 of the Act. In the aforesaid factual background, the appellant-complainant Satish Kumar has preferred the instant appeal. 4. Observations I have heard learned counsel for the parties and also considered the record of the case. 4(i) It is not in dispute that the complaint was filed by Satish Kumar through his father and GPA Jagdish Chand. In A.C. Narayanan’s case supra, Hon’ble Apex Court has held that filing of complaint through the Power of Attorney is perfectly legal and competent. The Power of Attorney holder can depose and verify on oath to prove the contents of the complaint. However, the power of attorney must have witnessed the transaction or possess due knowledge of the same. The complaint filed through the power of attorney holder must contain a specific assertion that he had the knowledge about the transaction in question. Following principles were laid down in the judgment regarding filing of complaint through power of attorney: - “33 While holding that there is no serious conflict between the decisions in MMTC (supra) and Janki Vashdeo Bhojwani (supra), we clarify the position and answer the questions in the following manner: 33.1 Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent. 33.2 The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. 33.2 The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions. 33.3 It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case. 33.4 In the light of section 145 of N.I Act, 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 and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. 33.5 The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.” The above principles were reiterated by Hon’ble Apex Court in Special Leave to Appeal (Crl.) No.6220 of 2019 (Mita India Pvt. Ltd. Versus Mehendra Jain, decided on 20.02.2023. It was further held that the General Power of Attorney holder can give evidence about the facts of which he has the knowledge. 4(ii) In the instant case, the complaint was filed by the appellant-complainant through his father. The original GPA was not produced. Only a copy thereof was produced as ‘Mark X’. The GPA was not proved in accordance with law. There was no averment in the complaint about the GPA holder having any knowledge concerning the transactions alleged in the complaint. The complaint was filed by Satish Kumar through his GPA on the basis of a cheque, alleged to have been issued to him by the respondent-accused. There was no mention either in the complaint or in the affidavit furnished by GPA Sh. Jagdish Chand of his having any knowledge of the alleged transaction. Sh. The complaint was filed by Satish Kumar through his GPA on the basis of a cheque, alleged to have been issued to him by the respondent-accused. There was no mention either in the complaint or in the affidavit furnished by GPA Sh. Jagdish Chand of his having any knowledge of the alleged transaction. Sh. Jagdish Chand was neither the payee nor the holder of the cheque. No such assertions were made by the GPA. In fact, the complaint states that Rs.70,000/- were due to the complainant on account of rent of the bus for the period of six months, whereas, in the same complaint, it has been mentioned that the rent of the bus was Rs.8000/- per month, which comes to Rs.48,000/- for six months. The GPA in his cross-examination, while appearing as CW-1, attempted to improvise the version given in the complaint and stated that the amount of Rs.70,000/- was due to the complainant on account of rent for 8-9 months. The facts give clear indication that the GPA of the appellant-complainant was neither aware of the transaction involved in the complaint, nor did he assert such knowledge in the complaint nor he had sworn in the affidavit that he was aware of the transactions involved. Accordingly, in view of the law laid down by the Hon’ble Apex Court in A.C. Narayanan’s case supra, the learned Trial Court was justified in holding that the complaint filed by Satish Kumar through his GPA and the evidence led by Satish Kumar through his GPA, (which GPA was not proved in accordance with law), cannot be held to be proper. 4(iii) Learned counsel for the appellant does not even dispute the above facts, the legal position and legal consequences flowing from that. The emphasis placed by learned counsel for the appellant is to establish the alleged illegality committed by learned Trial Court in rejecting two applications moved by the appellant-complainant vide common order dated 21.03.2023. It was submitted that by means of the two applications, one moved under Section 302 of Cr.P.C and the other under Section 311 of Cr.P.C, the appellant Sunil Kumar had pleaded before the learned Trial Court that he was out of country and had returned to India, therefore, he intends to pursue the complaint personally. It was submitted that by means of the two applications, one moved under Section 302 of Cr.P.C and the other under Section 311 of Cr.P.C, the appellant Sunil Kumar had pleaded before the learned Trial Court that he was out of country and had returned to India, therefore, he intends to pursue the complaint personally. Accordingly, in the application filed under Section 311 of Cr.P.C, he had expressed his intention to examine himself as witness in the complaint. Learned counsel contended that learned Trial Court committed grave illegality in dismissing these applications on 21.02.2023 and two days later, passed the order dismissing the complaint vide judgment dated 27.02.2023. I do not find any force in the above argument. The appellant - complainant had filed the complaint through his father and GPA Sh. Jagdish Chand. The GPA had already stepped into the witness box as CW-1. He was cross-examined extensively by the respondent-accused. The GPA had stepped into the witness box on behalf of the appellant-complainant. After recording statement of the GPA, statement of the appellant-complainant could not have been recorded as his own witness. There could not have been two statements for the appellant-complainant, one by his GPA and the other subsequent statement by the appellant-complainant himself or else the appellant-complainant would get a chance to rectify the lacunae that surfaced during the cross-examination of his GPA. Learned Trial Court has justly dismissed the applications. 5. For the aforesaid reasons, I do not find any merit in the present appeal. The same is accordingly dismissed. The pending miscellaneous application(s), if any, also stand disposed of.