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2006 (2) Crimes 270
BOMBAY HIGH COURT
S.P. Kukday, J.
M/s. G.J. Packaging Private Ltd. & Anr.—Petitioners
versus
M/s. S.S. Sales & Anr.—Respondents
Crl. Appln. No. 95 of 2005
Decided on 27-9-2005
No fault could be found with impugned order.
Held: The conspectus of judicial opinion, therefore, establish a principle that complaint in respect of offence punishable under Section 138 of N.I. Act need not be personally filed by the payee or holder in due course. It can be filed by power of attorney of the payee. Where the complainant is a juridical person it can be represented by a nature person to act as a de facto complaint. Where a power of attorney has full knowledge of the transaction, his statement can be recorded by the Magistrate for verification of the complaint, for ascertaining the truth of the allegations and to enable him to take proper decision as to whether the process should be issued or not. Even if the complaint is signed by a person, who is not properly authorized this defect can be subsequently rectified. The complaint cannot be quashed merely on this ground. In view of this settled position, contention of learned counsel for petitioner that power of attorney cannot maintain a complaint and statement of the power of attorney holder cannot be recorded for the verification of the complaint cannot be sustained. In a case where the power of attorney holder has full knowledge of the transaction, his statement can be recorded by the Magistrate for ascertaining the truth or otherwise of the statements made in the complaint to enable him to decide whether or not process should be issued.Referring to these principles, learned Counsel for the respondents has rightly submitted that in the present case the complaint is filed in the name of the payee by the holder of power of attorney. Power of attorney holder has full knowledge of the transaction. Not only that the application filed by the petitioners for re-call of process shows that the power of attorney holder (who happens to be husband of sole proprietress of the payee) was dealing with this transaction from the beginning. He had been to Sendhwa for collection through Cosmos bank. Thus, in the present case, the Magistrate was justified in recording the statement of the power of attorney holder. On being satisfied that there are sufficient grounds for proceedings, learned Magistrate has issued process against the petitioners under Section 138 of N.I. Act Therefore, no fault can be found with the impugned
order.(Paras 17 & 18)
Result: Pettiion dismissed.
ORDER
S.P. Kukday, J.— Heard
2. This application filed under section 482 of Cr. P.C. impugns order dated 17-3-2005 passed by the learned Chief Judicial Magistrate, Aurangabad in SCC No. 344/2003 issuing process against the applicant for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred to as N.I. Act).
3. Briefly stated the relevant facts are that Respondent No. 1 M/s S.S. Sales is a proprietary concern. Mrs. Swati Dilip Gandhi is the sole proprietress of the firm. The firm deals in craft papers and was supplying goods to petitioner No. 1 company—M/s. G.J. Packaging Pvt. Ltd. situated at Sendhawa. Petitioner No. 2 and Shri Ganesh Soni are the Directors of the petitioner No. 1. Resp. No. 1 was selling the goods to petitioner No. 1 on credit from time of time. On 4-12-2002, petitioners issued a cheque bearing No. 603865 drawn on State Bank of India, Indore branch for Rs. 13,52,132/- in favour of the Resp. No. 1 for payment of the dues. Resp. No. 1 presented this cheque for collection through Cosmos Bank Ltd. Aurangabad. The cheque was dishonoured and returned by the banker on 10-12-2002, as the payment was not arranged for. An intimation regarding dishonour of cheque was given to Resp. No. 1 on 13-12-2002. A notice was, therefore, issued to the petitioners. However, as the petitioners did not make payment, Resp. No. 1 filed a complaint in the court of Chief Judicial Magistrate, Aurangabad on 18-1-2003 against the petitioners through Power of Attorney holder Mr. Deelip Gandhi. Statement of power of attorney holder for the purpose of verification of the complaint was recorded by Chief Judicial Magistrate on 17-3-2003. On being satisfied that there are sufficient grounds for proceeding learned Chief Judicial Magistrate issued process against the petitioners for offence punishable under Section 138 of the N.I. Act.
4. Petitioners appeared before
the Court and filed application, Exh. 24 on 17-8-2003 praying for re-call of
process on various grounds. One of the grounds for re-call of the process was
that the complaint was not filed by
payee or holder of the cheque in due course, as required by Section 142 of the N.I. Act.
5. Relying on the ruling of Kerala High Court, reported in 1994 (1) Crimes 395, learned C.J.J. came to the conclusion that power of attorney holder can file a complaint on behalf of the payee. In this view of the matter, he rejected the application by order dated 29-6-2004.
6. Petitioners preferred a revision against this order being Criminal Revision No. 122/2004 before the Sessions Judge at Aurangabad. The Revision was dismissed in view of the judgment of the Apex Court in the matter of Adalat Prasad v. Rooplal Jindal, reported in 2004 (4) Mah. LJ 274; AIR 2004 SC. 4674 as the Chief Judicial Magistrate, had no power to review his earlier order of issue of process and the only remedy available to the petitioners is to challenge the order of issue of process by filing a petition under Section 482 of Cr. P.C. The petitioners are, therefore, impugning the order passed by Chief Judicial Magistrate dated 17-3-2005, issuing process against the petitioners for the offence punishable under section 138 of N.I. Act, in this petition.
7. Code of Criminal Procedure prescribes a procedure for trial of all criminal cases except the cases filed under any special or local law for the time being in force. Section 5 of Cr. P.C. carves an exception to the rule.
“Section 5—Saving—Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.”
8. Bare perusal of Sections 5 of the Code would make it clear that the procedure prescribed by the Code in absence of specific provisions contrary does not affect any special or local law for the time being in force
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