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SUPREME COURT OF INDIA
SUDHANSU JYOTI MUKHOPADHAYA, S.A. BOBDE, JJ.
A.C. NARAYANAN – APPELLANT
V/s
STATE OF MAHARASHTRA & ANR. – RESPONDENTS
CRIMINAL APPEAL NO.73 OF 2007
With
SHRI G. KAMALAKAR – APPELLANT
V/s
M/S SURANA SECURITIES LTD. & ANR. – RESPONDENTS
CRIMINAL APPEAL NO.1437 OF 2013
Decided On : 28-01-2015
2013 (11) SCALE 360 – Relied upon
(2002) 1 SCC 234; (2005) 2 SCC 217 – Referred
(b) Negotiable Instruments Act, 1881 – Section 138, 141 and 142 – Complaint filed by alleged power of attorney holder – Evidence given by another alleged power of attorney holder, only an employee of Company – Complaint not signed by Managing Director or any Director of Company – Complaint filed and evidence given by a person not authorised to do so – Magistrate rightly acquitting appellant. (Para 20)
Facts of the case:
The appellant is the Vice-Chairman and Managing Director of the Company M/s Harvest Financials Ltd. having its registered office at Bombay. Under a scheme of investment, the appellant collected various amounts from various persons in the form of loans and in consideration thereof issued post-dated cheques either in his personal capacity or as the signatory of the Company which got dishonoured.
Respondent No. 2-Mrs. Doreen Shaikh is the power of attorney holder of six complainants.
On 16th December, 1997, Respondent No.2 on behalf of the six complainants filed Complaint Cases against the appellant herein under Sections 138 and 142 of the Negotiable Instruments Act, 1881 before the Trial Court. The said Respondent No. 2 verified the complaint in each of those cases as Power of Attorney Holder of the complainants. The Additional Chief Metropolitan Magistrate vide order dated 04th April, 1998 issued process against the appellant u/s 204 of the Cr.P.C for the offences punishable under Sections 138 and 142 of the N.I. Act.
The appellant moved an application for discharge/recall of process in each of the complaints. The Trial Court dismissed the applications filed by the appellant.
The appellant preferred applications before the High Court for calling for the records of the case pending in the Trial Court.
The said applications were dismissed by the High Court.
Finding of the Court:
Impugned judgment cannot be sustained.
Result: Appeals allowed.
Key Points: - The judgment holds that filing under Section 138 NI Act through a power of attorney holder is permissible, provided the POA is duly authorised; absence of explicit POA reference in the body of the complaint can render cognizance improper if not properly supported by POA documents. (!) (!) (!) - The power of attorney holder may depose and verify on oath to prove the contents of the complaint, but must have witnessed the transaction or possess knowledge; explicit assertion of the holder’s knowledge is required in the complaint. (!) (!) (!) - The power of attorney holder cannot file a complaint in his own name as if he is the complainant, but may initiate proceedings on behalf of the principal; sub-delegation of functions requires explicit clause in the POA. (!) (!) - Larger Bench cases (A.C. Narayanan v. State of Maharashtra) held that filing through POA is legal, with guidelines on verification and attendance; however, defective filings lacking POA details or improper cognizance can lead to quashing of proceedings. (!) (!) (!) (!) - The case discusses the need for explicit knowledge assertion in the complaint and the circumstances under which the POA holder can depose, including exceptions when the holder lacks knowledge. (!) (!)
JUDGMENT
SUDHANSU JYOTI MUKHOPADHAYA, J.
As the question of law involved is common in both the appeals, they are heard together and disposed of by this common judgment.
Criminal Appeal No.73 of 2007
2. Brief facts of the case are as follows:
The accused-appellant, A.C. Narayanan challenged the common order dated 29th November, 2000 passed by the Additional Chief Metropolitan Magistrate, 9th Court, Bandra, Mumbai (hereinafter referred to as the, 'Trial Court') by filing applications u/s 482 of the Code of Criminal Procedure, 1973 before the High Court. By the said common order the applications preferred by the appellant- A.C.Narayanan for discharge/recalling process against him was rejected by the Trial Court. The High Court by impugned judgment dated 12th August, 2005, dismissed the applications preferred by the appellant and upheld the order passed by the Trial Court.
3. The appellant is the Vice-Chairman and Managing Director of the Company M/s Harvest Financials Ltd. (hereinafter referred to as the "Company") having its registered office at Bombay. Under a scheme of investment, the appellant collected various amounts from various persons in the form of loans and in consideration thereof issued post-dated cheques either in his personal capacity or as the signatory of the Company which got dishonoured.
4. Respondent No. 2-Mrs. Doreen Shaikh is the power of attorney holder of six complainants, namely Mr.Yunus A. Cementwalla, Smt. Fay Pinto, Mr. Mary Knoll Drego, Smt. Evelyn Drego, Mr. Shaikh Anwar Karim Bux and Smt. Gwen Piedade. On 16th December, 1997, Respondent No.2 on behalf of the six complainants filed Complaint Case Nos.292/S/1998, 293/S/1998, 297/S/1998, 298/S/1998, 299/S/1998 and 300/S/1998 respectively against the appellant herein under Sections 138 and 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the, 'N.I. Act') before the Trial Court. The said Respondent No. 2 verified the complaint in each of those cases as Power of Attorney Holder of the complainants. The Additional Chief Metropolitan Magistrate vide order dated 04th April, 1998 issued process against the appellant u/s 204 of the Cr.P.C for the offences punishable under Sections 138 and 142 of the N.I. Act.
5. The appellant, being aggrieved moved an application for discharge/recall of process in each of the complaints. The Trial Court vide common order dated 29th November, 2000 dismissed the applications filed by the appellant.
6. The appellant being aggrieved preferred applications being Criminal Application Nos.797, 798, 799, 801, 802 and 803 of 2002 before the High Court for calling for the records of the case pending in the Trial Court.
By impugned order dated 12th August, 2005 the said applications were dismissed by the High Court.
Criminal Appeal No.1437 of 2013
7. The brief facts of the case is as follows:
This appeal has been preferred by the accused-G. Kamalakar against the judgment and order dated 19th September, 2007 passed by the High Court of Judicature, Andhra Pradesh of Hyderabad in Criminal Appeal No. 578 of 2002. By the impugned judgment, the High Court allowed the appeal preferred by the 1st respondent- M/s Surana Securities Ltd. (hereinafter referred to as the 'Company') set aside the judgment of acquittal dated 30th October, 2001 passed by the XVIII Metropolitan Magistrate, Hyderabad in CC No.18 of 2000 convicted the appellant under Section 138 of the N.I. Act and sentenced the appellant to pay a fine of Rs. 6,10,000/-, out of which an amount of Rs. 6,00,000/- was to be paid to the complainant towards compensation and in default to suffer simple imprisonment for a period of one month.
8. The 1st respondent - M/s Surana Securities Ltd. is the complainant and is a limited Company carrying on business of trading in shares. The appellant-G. Kamalakar is the client of the 1st respondent-Company and used to trade in shares. During the course of business, the appellant-G.Kamalakar became liable to pay an amount of Rs. 7,21,174/- towards
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