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IN THE HIGH COURT OF BOMBAY
MAMATADEVI PRAFULLAKUMAR BHANSALI
Versus
PUSHPADEVI KAILASHKUMAR AGRAWAI
Decided On Date: 21/04/05
Dishonour of cheque - Complaint filed by power of attorney holder - Maintainable or not. - Held, in transactions, that are undertaken by power of attorney in total exclusion of payee or holder in due course, power of attorney holder in addition to his capacity to file complaint on basis of power of attorney, alone has to be the witness in place of complainant apart from other witnesses. Accordingly, power of attorney himself being a witness right from inception in transaction, and if such statement is incorporated in complaint, statement contemplated by Section 200 of Criminal Procedure Code has to be recorded by the power of attorney for and on behalf of the complainant while doing so he does it as GPA and as a witness which positions are inseparable. AIR 2001 SC 567; 2004(1) Mh LJ 487 : 2003 All MR (Cri) 2523; 2001 Bank J. 633 - Relied on.
Dishonour of cheque - Complaint filed by power of attorney holder - Attorney holder, filed complaint under Section 142 of N.I. Act under Section 138 of Act in the name of the principal - Validity of. - Held, under N.I. Act, idea of empowering title holder of instrument entitled to be named therein to get money, who in turn had to be entitled to file the complaint for dishonour of cheque. Cheque holder, on presentation, is a person who is affected or injured and is entitled to file a complaint under the N.I. Act. Attorney holder, can file complaint under Section 142 of N.I. Act for offence under Section 138 thereof in the name of the principal for signing for and on behalf of the principal. 2000 (Supp.) Bom CR 325 - Relied on.
Negotiable Instruments Act, 1881 - Section 138. - Complaint - By power of attorney holder - Whether maintainable - Transaction undertaken by power of attorney totally excluding payee or holder in due course - Whether, the power of attorney holder, in addition to his capacity to file complaint, alone has to be the witnesses in place of the complainant if involved in the transaction - In case of transactions, while depending upon what is disclosed in complaint, if all transactions are undertaken by power of attorney totally excluding payee or holder in due course, in such eventuality power of attorney holder in addition to his capacity to file complaint on basis of power of attorney alone has to be the witness in transaction and such the statement is incorporated in complaint, statement contemplated by Section 200 of Cr PC has to be recorded by the power of attorney he does it duly as GPA and as a witness which positions are inseparable. AIR 2001 SC 567; 2004 (1) Mh LJ 487 : 2003 All MR (Cri) 2523; 2001 Bank J. 633 relied on.
Negotiable Instruments Act, 1881 - Sections 142 and 138 - Powers of Attorney Act, 1882, Section 2 - Complaint under Section 142 of Act. - Duly and properly authorized power of attorney holder can file complaint under Section 142 of Act for an offence of dishonour of cheque under Section 138 of Act. - Under the scheme of Negotiable Instruments Act, 1881, the idea of empowering title holder of the instrument entitled to named therein to receive money, who in turn had to be entitled to file the complaint for dishonour under Section 138 read with Section 142 of the Negotiable Instruments Act. Holder of a cheque, which is dishonoured on presentation, is a person who is affected or injured and is entitled to file a complaint under the said Act. The power of attorney holder who is duly and properly authorized to do so can file complaint under Section 142 of the Negotiable Instruments Act towards dishonour of cheque for offence under Section 138 thereof in the name of the principal for signing for and on behalf of the principal. 2000 (Supp.) Bom CR 325 - Relied on.
Negotiable Instruments Act, 1881 - Sections 142 and 138 - Complaint under Section 138 by power of attorney. - Complaint for an offence of dishonour of cheque filed by a duly and properly authorized power of attorney holder is maintainable.
Negotiable Instruments Act, 1881 - Sections 145 and 138 - Criminal Procedure Code, 1973, Section 200 - Recording of statement of complainant. - Requirement of recording of statement of complainant dispensed with by virtue of Section 145 of Act. - Section 145, as inserted by amendment to the Negotiable Instruments Act, 1881 by Act No. 55 of 2002, brings in an overriding effect to what is provided in the Criminal Procedure Code. The requirement of recording of statement of the complainant stands substantially dispensed with by virtue of Section 145 of the Act and even on account of failure to record, the statement of the complainant, dismissal of the complaint at the threshold would not be permissible as the affidavit of the complainant can be filed. It is however, open to the discretion of the Judge to put questions to the complainant if he considered it necessary.
Powers of Attorney Act, 1882 - Section 2 - Complaint - Filed by power of attorney holder - Whether maintainable - Transaction undertaken by power of attorney in total exclusion of payee or holder in due course - Whether power of attorney holder besides to file complaint, alone has to be the witness in place of the complainant apart from other witnesses involved in the transaction. - Held, if all transactions are undertaken by power of attorney in total exclusion of payee or holder in due course, he besides to file complaint on basis of power of attorney, alone has to be witness in place of complainant apart from other witnesses. Thus, power of attorney himself being a witness right from inception in transaction, and if such statement is incorporated in complaint, statement contemplated by Section 200 of Cr PC has to be recorded by the power of attorney for and on behalf of the complainant while doing so he does it duly as GPA and as a witness which positions are inseparable. AIR 2001 SC 567; 2004 (1) Mh LJ 487 : 2003 AIR MR (Cri) 2523; 2001 Bank J. 633 - Relied on.
Powers of Attorney Act, 1882 - Section 2 - Complaint - Filed by power of attorney holder - Whether maintainable - Attorney holder, filed complaint under Section 142 for offence under Section 138 of N.I. Act in the name of the principal - Validity. - Held, under N.I. Act, idea of empowering title holder of instrument entitled to named therein to receive money, who in turn had to be entitled to file the complaint for dishonour of cheque. Holder of a cheque, on presentation, is a person who is affected and is entitled to file a complaint under the N.I. Act. Power of Attorney holder, can file complaint under Section 142 of N.I. Act for offence under Section 138 thereof in the name of the principal by signing for and on behalf of the principal. 2000 (Suppl) Bom CR 325 - Relied on.
( 1 ) THE facts in brief can be stated as follows :- according to the complainant, she had advanced a loan of Rs. 5 lackhs to accused. The accused person failed to repay the loan and ultimately the accused delivered to the complainant a cheque of Rs. 2,50,000/- dated 24-10-2001 bearing No. 1979158 drawn on Khamgaon Urban Co-operative Bank Ltd. , khamgaon, Branch Paratwada, towards the repayment of the loan with an assurance that the cheque shall be honoured positively. The cheque was dishonoured when deposited with Banks remark "fund insufficient in the account of the accused". On 16-11-2001 complainant issued notice by Registered Post as well as by Under Certificate of Posting on 16-11-2001 on the original address of the accused. The notice served by the UCP was received by the accused, however, the Registered A. D. envelop was received wiith Post Office remark "do not claimed". According to the complainant, despite knowledge of liabilities, the accused did not make the payment. Complainant treated it as deemed service of notice, therefore, filed a private complaint.
( 2 ) THE Complainant Pushpa w/o Kailashkumar Agrawal filed a complaint in her own name representing herself through power of attorney Shri Kailashkumar ramraj Agrawal who is her husband. In the body of complaint an averment is made that all transactions towards which the cheque was given had taken place in presence of the husband of the complainant who is her power of attorney. The amount of cheque was towards the part payment of hand loan which was paid by cheque. According to the complainant, she has done all transactions through her husband - the power of attorney as well that he is the holder in due course. The complaint is signed by the complainant as well as by her power of attorney.
( 3 ) THE verification statement of complainant's husband Kailashkumar agrawal who is her power of attorney was recorded. The learned Judicial magistrate, First Class, passed order which reads as follows : order presented by the complainant's power of attorney on 27-12-2001. Register as summons case. Perused complaint, verification statement with record. Heard. Accused is prima facie seen involved in offence under section 138 of N. I. Act. Hence issue process against him. P. F. be paid sd/- illegible"
( 4 ) THE accused person submitted application for recall of order of issue of process, on 14-11-2002, on the ground that the complaint was filed, presented by the power of attorney as well statement of power of attorney was recorded, and on this count alone that it was liable to be dismissed. The ground did not find favour with the learned Magistrate, First Class, and he, therefore, dismissed the application. In the Criminal Revision No. 9/04 raising same objection as ground was agitated as can be read from Grounds (b), (c), (i) and (j ).
B) That the learned Trial Court erred in holding that the order to issue process is passed after verification statement of the complainant, whereas in fact, there is no verification statement of the complainant on record. c) That the learned Trial Court erred in holding and caused thereby miscarriage of justice that the verification statement of the alleged Power of Attorney Holder as of the complainant, which is contrary to law and mandatory provisions. i) That the learned Trial Court also lost sight to the fact that the complaint, as having been filed through alleged Power of Attorney holder and not by the complainant herself, was not legally and properly presented as required under the law, and on the basis of which cognizance cannot be taken by the Court, under law. j) That the learned Trial Court ought to have held that the Power of attorney Holder has no locus standi to move the Court for taking cognizance of alleged offence punishable under section 138 of the negotiable Instruments Act, and more particularly, in view of section 142 of the said Act.
( 5 ) THE learned Sessions Judge, however, dismissed the revision application holdi
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