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2009(2) Bankmann 382 (Bom.)
BOMBAY HIGH COURT
(NAGPUR BENCH)
R.C. Chauvin, J.
Durgadevi Gaurishankar
Battad —Appellant
versus
Shalikram Vitthalrao Korde
and Anr. —Respondents
Criminal Application Nos. 1971 and 2053 of 2008
And Criminal Appeal Nos. 494 and 496 of 2008
Decided on 2.4.2009
Counsel for the Parties:
For the Appellants in Cri. Appn. No. 1971/2008 & Cri. A. No. 496/2008:G.F. Bhagwani, Advocate.
For the Respondent No. 2 in Cri. Appn. No. 1971/2008 & Cri. A. No. 496/2008: O.D. Kakde, A.P.P.
For the Appellant in Cri. Appn. No. 2053/2008 & Cri. A. No. 494/2008:Rahul Taneja, Advocate.
For the Respondent in Cri. Appn. 2053/2008 & Cri. A. No. 494/2008:D.M. Shrimali, Advocate.
IMPORTANT POINT
The holder of power of attorney can file a complaint but not in his own name.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Cheque dishonoured—Section 142—Complaint by holder of power of attorney—Section142—Trial Court acquitted accused.
(ii) Criminal Procedure Code, 1973—Section 378—Separate appeals against acquittal—Held: First complaint was filed through a competent authority— Second complaint attorney—Second complaint was filed by a competent in his own name—The complaint is to be filed in the complainant’s own name—Appeal No. 496 of 2008 is allowed and the matter was remanded back to the trial Court for fresh decision on merits— Appeal No. 494 of 2008 dismissed. (Paras 1, 6 and 13 to 17)
Chavan R.C., J.—These applications, by complainants in complaints for offence punishable under Section 138 of the Negotiable Instruments Act, seeking leave to file appeal against judgments of acquittal rendered by Judicial Magistrates, First Class in Criminal Case Nos. 833 of 2005 (new) 1988/2004(old) and 3321/2007 raise a common question and are, therefore, taken up for disposal by a common judgment.
2. Criminal Case No. 1988/2004 i.e. New No. 833/2005 had been filed by the payee through holder of her power of attorney one Kamalkishore, whereas Criminal Case No. 3321/2007 had been filed by Sk. Salam who was grandson and holder of power of attorney of Halimabee payee of the cheque.
3. The holders of Power of Attorney in both the cases tendered evidence on behalf of the complainants. After considering the evidence tendered, in light of judgment of learned Single Judge of this Court in Roy Joseph v. Sk. Tamisuddin1 the learned Magistrates proceeded to acquit both the accused. Aggrieved thereby the complainants have sought leave to file appeal by these two applications.
4. It was pointed out that there was a contrary judgment of another learned Single Judge of this Court in Mamtadevi P. Bhansali v. Pushpadevi K. Agrawal.2 In view of this, leave granted.
5. Both the appeals are, therefore admitted and by consent taken by for final hearing.
6. Both these appeals raise a small question of law, as to whether the complaint for the offence punishable under Section 138 of the Negotiable Instruments Act can be filed by holder or power of attorney.
7. I have heard learned counsel for the parties. None appeared for respondent No. 1 in Criminal Appeal No. 496 of 2008, though served through paper publication.
8. In Roy Joseph v. Sk. Tamisuddin (supra) a complaint was originally shown to have been filed for and on behalf of one Sayarabee, who was payee. Sayarabee had not herself signed the complaint or verified it. The accused, therefore, sought to have the complaint dismissed. The learned Single Judge considered the requirements of law in this regard and observed in paragraph 11 as under:
“11. ….The statutory provisions requires, therefore, that the complaint must be signed by the complainant and that it shall be verified by the complainant. In the other words, a complaint which is not signed by the complainant, is, therefore, incomplete and on the basis of such incomplete complaint, no cognizance can be taken under Section 142 of the Negotiable Instruments Act. As stated before, verification of the complainant is essential in order to ensure that in future no body may be allowed to deny liability arising out of frivolous complaint, false charges, malicious prosecution or like unfounded criminal action. Corollary of the foregoing discussion is that for the purpose of a valid complaint the test is to examine whether identity of the person, who would be liable to pay be compensation to the accused persons, may under Section 357 of the Criminal Procedure Code or may be under the tortuous liability, is clearly set out in the complaint. Looked from this angle, the complaint filed by the special power of attorney does not show that he accepted any liability for such adverse effects on the complaint being found frivolous or vexatious…”
9. In paragraph 14 the learned Judge considered another judgment of this Court in Dr. Pradeep Mohanbay v. Mr. Minguel Carlos Dias3 and in paragraph 15 observed as under:
“15. There is no difficulty in accepting the proposition that a Power of Attorney may enter witness box in his own capacity so as to spell out the facts known to him. In no case, however, he can substitute himself in place of the complainant right from the stage of verification of the complaint till end of the trial. In other words, the original complainant cannot be a mere name lender when the complaint is filed for the offence under the Negotiable Instruments Act. This is more so having regard to the purpose of the verification under Section 20
