IMPORTANT POINT
Power-of-attorney holder cannot depose on behalf of complainant.

Manmohan Singh, J.—The petitioner has filed the present petition under Section 482 of Cr.P.C. for quashing the Complaint Case No.21/1 dated 8th February, 2010 and the notice under Section 251 Cr.P.C. dated 6th April, 2010 and further proceedings arising out of the complaint pending before learned Metropolitan Magistrate.

2. The Criminal Complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “Act”) for a sum of Rs.75 lacs against alleged liability to pay an amount of Rs.3,00,00,000/- filed by respondent No.1 through respondent No.2 Mr. Prashant Mamgain who is allegedly holding a Special Power of Attorney of Mr. Tushar Patni/respondent No.1. It was claimed in the complaint that the respondent No.1 had given a friendly loan of Rs.2,00,00,000/- in cash way back on 10th May, 2006 to the petitioner. It is alleged by the petitioner that she has never seen respondent No.1 in her life and therefore, the question of taking friendly loan to the extent of Rs.2 Crores in cash, does not arise. It is averred in the petition that on 12th March, 2010, the petitioner received NBW which was issued against her for 18th March, 2010 for bouncing a cheque No.200451 dated 1st December, 2009 for an amount of Rs.75 lacs by the Court of MM, Dwarka Courts, New Delhi. It is averred that she is a permanent resident of Flat No.A-212, Samachar Apartments, Mayur Vihar, Phase-I Extension, Delhi-110091. The respondent No.2 is a resident of Flat No.C-2/26, Mangal Apartments, Vashundra Enclave, Delh-110096. The address of respondent No.1 is P.O. Box No.880, Abu Dhabi, UAE, as given by respondent No.2. The petitioner has never met respondent No.1.

3. The brief facts as per petitioner are that the petitioner appeared before Metropolitan Magistrate on that day with an application for cancellation of NBW and grant of bail, who admitted the petitioner on bail on furnishing a personal bond of Rs.1 lakh with a surety of the like amount. The counsel for the complainant was directed to furnish the complete set of papers to the counsel representing the petitioner herein. He was then given the documents against the acknowledgment relating to the complaint in question.

4. The trial court on 6th April, 2010 framed notice under Section 251 Cr.P.C. for offence under Section 138 of the Act against the petitioner as she did not plead guilty and claimed trial. After framing of the notice, it was disputed by the petitioner that the Special Power of Attorney signed by a resident of UAE was not attested and the Power of Attorney did not also claim for personal knowledge of the case in the pre/post summoning evidence.

5. It is alleged by the petitioner that from the complaint, the petitioner came to know that previously also, some complaint No.2675/01/07 - dated 27th November, 2007 under Section 138 of Act was filed before Addl. Chief Metropolitan Magistrate, Patiala House Courts, New Delhi by the respondent No.2 as authorized attorney of respondent No.1. In the complaint, it was claimed that complainant- respondent No.1 had given a friendly loan of Rs.2,00,00,000/- in cash to the petitioner herein for a period of 6 months on 10th May, 2006 believing that the same amount would be “returned by the petitioner on 10th November, 2006 on the personal assurance given by the petitioner.

6. In the complaint, it was also mentioned that when the aforesaid amount was not given back, on the expiry of aforesaid period of 6 months, the petitioner issued a cheque bearing No.773308 dated 4th October, 2007 for a sum of Rs.2 crores drawn on the Nainital Bank Ltd., P-37, Pandav Nagar, Patparganj, Delhi-92 to discharge in whole of the said debt. However, the abovesaid cheque on being presented, the complainant received a returning memo dated 6th October, 2007 from his Banker i.e. Bank of Baroda, Naryana, New Delhi with the remark of ‘Insufficient Funds’. Therefore, a legal notice was sent to the petitioner on 23rd October, 2007 to pay the aforesaid amou