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IN THE HIGH COURT OF JUDICATURE AT PATNA
SHIVAJI PANDEY, J.
Abhay Kumar Chatterjee @ Abhay Kumar Upadhaya @ Abhay Kr. Upadhaya & other –
Petitioner
Versus
State Of Bihar – Opposite Party
Criminal Miscellaneous No. 17319 of 2011
Decided on: 5-12-2012
Power of Attorney - Criminal Case - Indian Penal Code - Sections 420, 465, 471/34 - Order 3 Rule 1 & 2 of the Code of Civil Procedure - Janki Vashdeo Bhojwani v. Indusing Bank Limited (2005) 2 SCC 217 - Man Kaur v. Hartar Singh Sangha (2010) 10 SCC 512 - Md. Ibrahim v. State of Bihar (2009) 4 PLJR 99
Fact of the Case:
The petitioners challenged the order of cognizance for offences under sections 420, 465, 471/34 of the Indian Penal Code. The complaint alleged that the disputed property was gifted to Ajay Kr. Chatterjee, and the petitioners illegally sold the property by fraud and forgery.
Finding of the Court:
The court found that the power of attorney-holder did not have the authority to file the criminal case based on the deed of gift, as the status of the gift could only be tested in a civil suit. The court held that the complaint was not sustainable as the matter was a civil dispute between the parties.
Issues: The main issue was whether the power of attorney-holder could file the case based on the execution of the deed of gift by Kali Pada Chatterjee in favor of Ajay Kr. Chatterjee.
Ratio Decidendi: The court relied on Order 3 Rule 1 & 2 of the Code of Civil Procedure and the interpretations provided in the cases of Janki Vashdeo Bhojwani v. Indusing Bank Limited, Man Kaur v. Hartar Singh Sangha, and Md. Ibrahim v. State of Bihar to determine the scope of authority of the power of attorney-holder.
Final Decision: The court set aside the order of cognizance and quashed the subsequent proceedings, holding that the complaint was not sustainable as it revolved around the existence of the deed of gift, which could only be tested in a properly constituted civil suit.
The legal issue at the core of this case concerns the scope of authority of a power of attorney-holder in the context of filing criminal proceedings. The court established that a power of attorney-holder's authority is limited to acts explicitly done in pursuance of the powers granted by the instrument. Specifically, such a holder cannot depose on matters that only the principal can have personal knowledge of, nor can they initiate criminal proceedings based on transactions or facts that the principal must personally clarify or prove (!) (!) .
In this case, the complaint was filed by the attorney-holder on behalf of Ajay Kr. Chatterjee, who was allegedly gifted property by his father. The court found that the power of attorney did not expressly authorize the attorney-holder to file criminal cases or to act in matters concerning the validity of the gift, which is a civil issue. The dispute regarding the deed of gift, which is central to the criminal allegations, could only be properly tested in a civil suit, not through criminal proceedings initiated by the attorney-holder (!) (!) .
Furthermore, the court emphasized that the status of the deed of gift was within the personal knowledge of the principal, Ajay Kr. Chatterjee, and could only be explained or proved by him. The attorney-holder, having no personal knowledge of the gift's creation, could not depose or give evidence regarding it, especially in a criminal case where the validity of such a deed is in question (!) (!) (!) .
Based on these principles, the court held that the complaint filed by the attorney-holder was not sustainable, as it was primarily based on the existence and validity of the deed of gift—a matter that is inherently civil. As such, the criminal proceedings initiated on this basis were liable to be quashed, reaffirming that the authority of a power of attorney-holder does not extend to acting on matters that require personal knowledge or civil adjudication.
1. In this case, petitioners are challenging the order of cognizance dated 4th April 2011 for offence under sections 420, 465, 471/34 of the Indian Penal Code arising from Complaint Case No. C-2740/2009 pending before the Judicial Magistrate 1st class, Siwan.
2. Ajay Kr. Chatterjee is eldest son of late Kali Pada Chatterjee whereas petitioners No. 1 to 4 are sons and daughter and petitioner No. 5 is wife of Kali Pada Chatterjee. Petitioner Nos. 6 to 9 are purchaser of disputed land. Petitioner No. 12 is deed writer and petitioner Nos. 10 and 11 are conspirator of execution of deed.
3. The complainant is Constituted Attorney of Ajay Kr. Chatterjee @ Ajay Kr. Upadhayay on 17.6.2009. On the strength of being a power of attorney-holder, filed the complaint case vide Complaint Case No.2740/2009. In the complaint petition it has been alleged that the land in dispute appertaining to plot No. 476 area measuring 12 kathas 09 dhurs were acquired by the father of Ajay Kr. Chatterjee in the year 1931 and his father, namely, Late Kali Pada Chatterjee had gifted the said property to Ajay Kr. Chatterjee in the year 1972 and Ajay Kr. Chatterjee had given Power of Attorney to sell the land aforesaid on his behalf. It has been alleged, as the disputed property was of Ajay Kr. Chatterjee @ Ajay Kr. Upadhayay but petitioner Nos. 1 to 5 illegally sold the property by playing fraud and committing forgery in the record.
4. In this case, it is relevant that accused persons, namely, Abhay Kr. Chatterjee @ Abhay Kr. Upadhayay, Bijay Kr. Chatterjee @ Bijay Kr. Upadhayay, Anjan Chatterjee @ Anjan Kr. Upadhayay and Sanjay Kr. Chatterjee are the brothers and Sushma Chatterjee who is widow of late Kali Pada Chatterjee is the mother of Ajay Kr. Chatterjee whereas accused Raju Kumar, Satyendra Nath Choubey, Satish Kumar, Smt. Saroj Devi are the persons who purchased the property aforesaid.
5. The court below on the basis of statement of the complainant, that is, the power of attorney-holder and evidence of three witnesses took cognizance of the offence under sections 420, 465, 471/34 of the Indian Penal Code. After notice, the O.P. No. 2 has appeared to contest the case.
6. The counsel for the petitioner has basically raised the issue that the present complainant who is a Constituted Attorney of Ajay Kr. Chatterjee has not been authorized in terms of the deed of attorney to file any case so much so, the criminal case against the petitioners. He has further stated that the criminal case could have been filed by the Principal i.e. Ajay Kr. Chatterjee as has been allegedly claimed, the land was gifted by his father and, as such, the gift in question itself was/is in dispute. He has further argued that unless the gift is properly proved or Ajay Kr. Chatterjee comes forward to explain the status of gift, as the same is in dispute, the power of attorney-holder cannot have knowledge about the creation of gift by his father in his favour. He has further submitted that a Title Suit No. 333/1990 was filed by the petitioner including the principal, namely, Ajay Kr. Chatterjee. @ Ajay Kr. Upadhayay, the present land itself was one of the subject-matters of title suit where in paragraph-6 of the plaint it has been specifically stated that plaintiff Nos. 1 to 5 are sons of Kali Pada Chatterjee whereas plaintiff No. 6 being her widow and they have succeeded the property jointly. It has been submitted that after the death of Kali Pada Chatterjee in the year 1983 all the plaintiffs had been in peaceful possession over the property including the disputed property of the present complainant case.
7. The counsel for the petitioner submits that in view of the positive statement made by Ajay Kr. Chatterjee along with the other brothers and mother where there is no whisper about the execution of deed of gift as has been claimed in the complaint petition is completely forged and fabricated document so much so that rent receipt has been issued by the State of Bihar in the
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