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JAMMU AND KASHMIR HIGH COURT
Sanjay Kumar Gupta, J.
Rishav Enterprises —Petitioner
versus
Bhagwati Trading Company —Respondent
561-A Cr.P.C. No.312 of 2015 c/w 561-A Cr.P.C. Nos.314, 315, 316 and 318 of 2015
Decided on 28.9.2017
Appearing Counsel:
For the Petitioner(s):Mr. Rameshwar Singh Jamwal, Advocate
For the Respondents(s):Mr. Sachin Gupta, Advocate
IMPORTANT POINTS
1. Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent.
2. It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 145—Prosecution for dishonour of cheque—Complaint filed by power of attorney holder of payee firm—Petition for dismissal of complaint on plea that power of attorney was not duly authenticated—Record showed that fresh general power of attorney executed by complainant company before Notary authorised the attorney to represent complainant before any court of law—Court shall presume that document purporting to be power of attorney duly executed before and authenticated by Notary Public could be taken to have been so executed and authenticated—Petition was without merits and was liable to be dismissed.
Held: In present case from the perusal of record, it is further evident that the fresh general power of attorney executed by Complainant-Company before Notary Shri Ganga Nagar on 3.9.2014, has authorised the attorney to represent him before any Court of law etc. The ground taken that attorney has not been authenticated, is not tenable.
It would be thus seen from all the aforesaid judicial pronouncements that the Courts have been consistently taking a view that once the execution and authentication of the Power of Attorney by a Notary Public is proved on record, then Section 85 mandates the Court to draw a presumption in favour of due and valid execution of such a Power of Attorney. The Courts have also taken a view that the use of expression “authentication” in Section 85 of the Evidence Act must be accorded its due meaning, not merely comparing the same with the expression “attestation”. The authentication of a Power of Attorney or any document by the Notary Public necessarily would mean that Notary Public has duly satisfied himself about the competence of the Officer and his authority to execute such a Power of Attorney or other document. The purpose of Section 85 has thus been rightly held to eliminate the cumbersome evidence which in the absence of the said provision on the statute book would be required to prove the minutes book and Board Resolution etc. for proving the due and valid execution of the Power of Attorney. Looking into the growing international trade and the world economy, any other interpretation of Section 85 of the Evidence Act would unnecessarily burden the parties to bring the witnesses from outside state. Once a party who seeks to take advantage of Section 85 of the Evidence Act proves the Power of Attorney, its due execution and authentication by the Notary Public with due affixation of necessary seals on such a document then the onus would shift on the other party to disprove or rebut such a presumption arising in favour of the first party.
Hence, there is no merit in these petitions and same are dismissed. Copy of this order be placed in each file. Trial court shall decide the matter within stipulated time as provided under the Act. (Paras 17, 22 and 24)
Result: Petition dismissed.
Sanjay Kumar Gupta, J.—In all these five petitions, the petitioner has assailed similar order (Annexure-A) dated 08th June, 2015 passed by the Judicial Magistrate 1st Class, City Judge, Jammu, by which the applications moved by the applicant/accused (petitioner herein) has been dismissed. The petitioner has also assailed the Complaints (Annexure-B) in all the five petitions having different numbers i.e., Complaint Nos. 45, 44, 43, 42 and 41 pending before the learned City Judge, Jammu.
2. The facts giving rise to the filing of all these five petitions briefly stated are that:—
(i) The petitioner is the proprietor of M/S Rishav Enterprises, Upper Canal, Bishnah Road, Bari Brahmana, Jammu. The said firm deals in the business of sale/purchase of edible oils of different kinds and the petitioner firm also used to purchase goods from the respondent firm, which also deals in similar business.
(ii) The petitioner was having a Current Account in UCO Bank, Raghunath Bazar, Jammu and in response to the edible oil supplied by the respondent to the petitioner, the petitioner issued five cheques of the aforementioned Bank, which are:—
S. No.
Cheque No.
Date
Amount
1.
506718
01.11.2009
Rs. 1165859/-
2.
596746
30.11.2009
Rs. 753094/-
3.
596735
22.11.2009
Rs. 725868/-
4.
596747
02.12.2009
Rs. 770960/-
5.
596754
10.12.2009
Rs. 752960/-
The aforementioned cheques were not deposited by the respondents in their Bank Account and after fifteen days from the issuance of the cheques. The payment was made by the petitioner to the respondent by RTGS and nothing remained outstanding against any of the aforesaid cheques.
(iii) The petitioner, who was in good faith within fifteen days from the issuance of the aforesaid five cheques, paid the cheque amount by RTGS and nothing was outstanding against the petitioner with respect to any of the aforesaid cheques and the petitioner asked the respondent to return the aforesaid cheques. Since all the amount had been paid, but the same were not returned by the respondent on the ground that the aforesaid cheques issued had been lost/misplaced and assured that, as soon the cheques are found, they would be returned.
(iv) The respondent with malafide intentions deliberately retained those cheques and after the passage of more than five months, presented the said cheques with his bankers on 04th May, 2010. Since, the petitioner had already paid the cheque amount to the respondent, as such there was no question of his keeping such huge amount in his account and as such, the cheques got dishonored.
(v) The said illegal act of the respondent came to the knowledge of the petitioner when the petitioner was served legal notices by the advocate of the respondent, alleging that the said cheques issued by the petitioner had been dishonored.
(vi) The petitioner approached and contacted the respondent and told him that the aforesaid cheque amount had already been paid to the respondent by RTGS, but the so called attorney of respondent did not agree and failed to give any satisfactory response and on the contrary continued threatening the petitioner that since he is in possession of the cheques and does not want to deal with the petitioner any further, as such, he wants more money and on this, the petitioner was left with no other option, but to get the legal notice replied through his advocate, in which it has been clearly mentioned that the said aforesaid cheque amount stands paid by RTGS.
(vii) Giving practical shape to his threats of extracting money from the petitioner, the respondent filed five criminal complaints against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 read with Section 420 RPC through its so called power of attorney holder, namely, Girdhari Lal Khariwal. The said power of attorney authorized the attorney only to appear before
