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2006(1) Bankmann 11
BOMBAY HIGH COURT
A.H. Joshi, J.
Mamatadevi Prafullakumar
Bhansali — Petitioner
versus
Pushpadevi Kailashkumar Agrawal
& Anr. — Respondents
Cri. Application No. 2335 of 2004
Decided on 21-4-2005
Counsel for the Parties:
For the Applicant:Mr. N.R. Saboo, Advocate.
For the Non-applicant:Mr. A.S. Chandurkar, Advocate.
For the Non-applicant No. 2/State: Mr. T.R. Kankale, Additional Public Prosecutor.
IMPORTANT POINT
Power of attorney-holder can file complaint under Section 142 of Negotiable Instruments Act for offence under Section 138 of the Act in the name of the principal for signing for and on behalf of the principal.
Headnote:Negotiable Instruments Act, 1881—Sections 138, 142 and 145—Dishonour of cheque—Complaint by power of attorney holder of complainant—Complaint was signed by complainant as well as by her power of attorney—Verification statement of complainant’s power of attorney was recorded—Petition to quash summoning order and proceedings on plea that verification or sworn statement of power of attorney was not adequate compliance—Questions whether a power of attorney could file a complaint under Section 138 Negotiable Instruments Act? Yes—Should recording of statement by complainant in person be imperative even in cases where complainant had himself not witnessed the transaction but had since from inception of transaction deal with through power of attorney? No.
Held: Thus, the power of attorney holder who is duly and properly authorised to do so can file complaint under section 142 of N.I. 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. (Para 23)
Further held: Thus the requirement of recording of statement of the complainant thus stand substantially dispensed with by virtue of Section 145 of N.I. Act and even on account of failure to record the statement of the complainant the dismissal of the complaint at the threshold would not be permissible as the affidavit of the complainant can be filed.
The conclusions which this Court arrived at are as follows:—
(i)Filing of complaint by such person through power of attorney would be perfectly legal and competent.
(ii)That the complainant alone being a witness of transaction has himself to depose in support of complaint either at the stage of issuance of process or whenever.
(iii)If the transactions are witnessed by the power of attorney himself as an agent of the payee, such power of attorney alone can be a witness and his being a power of attorney cannot disentitle him from being a witness.
(iv) When the transactions are witnessed by the complainant and power of attorney or any other witness or witnesses in the whole or in part, all such persons will have to be the witness of the case, and the power of attorney shall not be disentitled from being examined as witness just because he holds a power of attorney.
In view of the conclusions reached by this Court narrated in forgoing para, the foundation of present petition is based on an objection that the power of attorney cannot be a witness even though as narrated in the complaint that he is the person who had conducted all transactions, looses all ground whatsoever. (Paras 32 to 34)
Result: Revision dismissed.
A.H. Joshi, J. —The facts in brief can be stated as follows:—
According to the complainant, she had advanced a loan of Rs. 5 lakhs 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 com-plainant 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. envelope was received with 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 Instru-ments Act, and more particularly in view of section 142 of the said Act.
5. The learned Sessions Judge, however, dismissed the revision ap-plication holding t
