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2010 Supreme(Cal) 953
HIGH COURT OF CALCUTTA
MRINAL KANTI SINHA, J.
Basanta Das - Appellant
Versus
Ratna Mondal - Respondent
Decided on : Aug 11, 2010
Ranjit Kumar Roy, Chitta Ranjan Mondal, Nirmal Kumar Manna, Kamal Krishna Manna
A power of attorney holder is competent to initiate criminal proceedings on behalf of his principal, including filing a complaint under Section 138 of the Negotiable Instruments Act, 1881.
Headnote:
CRIMINAL PROCEDURE CODE, 1973 - SECTION 200 - NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTION 138 - SECTION 142 - POWER OF ATTORNEY HOLDER - AUTHORITY TO INITIATE CRIMINAL PROCEEDINGS - COMPLAINT UNDER SECTION 138 OF THE N.I. ACT - MAINTAINABILITY - COURT'S JURISDICTION.
Fact of the Case:
The petitioner challenged an order of the Judicial Magistrate allowing the complainant to sign the complaint petition and vakalatnama in a case under Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act). The complainant had initially filed the complaint through her General Power of Attorney (GPA) holder, Samar Mondal, but later sought to sign the documents herself.
Finding of the Court:
The court held that the Judicial Magistrate did not err in allowing the complainant to sign the complaint petition and vakalatnama, even though she had initially filed the complaint through her GPA holder. The court noted that the GPA holder was legally competent to initiate the proceedings on behalf of the complainant and that the complainant was within her rights to sign the documents as the aggrieved person.
Issues: 1. Whether the Judicial Magistrate erred in allowing the complainant to sign the complaint petition and vakalatnama after she had initially filed the complaint through her GPA holder? 2. Whether the complaint filed by the GPA holder was maintainable under Section 138 of the N.I. Act?
Ratio Decidendi: 1. The court relied on the provisions of Section 200 of the Code of Criminal Procedure, 1973, which requires the Magistrate to examine the complainant and witnesses on oath and reduce the substance of such examination to writing, signed by the complainant and witnesses. 2. The court also referred to the Supreme Court's decision in Shankar Finance and Investments v. State of Andhra Pradesh, which held that a power of attorney holder can initiate criminal proceedings on behalf of his principal. 3. The court further noted that Section 142 of the N.I. Act requires a complaint under Section 138 to be made in writing by the payee or, as the case may be, the holder in due course of the cheque.
Final Decision: The court dismissed the revision petition, holding that the impugned order of the Judicial Magistrate was not illegal or incorrect and that there was no reason to interfere with it.
1. HEARD learned Counsel appearing for the parties.
2. THIS revisional application has been directed against the order dated 16.07.2009 passed by the learned 2nd Judicial Magistrate, Sealdah in Case No. C-722 of 2007, whereby the learned Judicial Magistrate, 2nd Court, Sealdah, 24-Parganas, has permitted the complainant to put her signature on the petition of the complainant and the Vakalatnama and the complainant has further been permitted to continue with the proceedings through her constituted Attorney Samar Mondal.
It is the case of the petitioner that the petitioner along with two other persons, namely, Ranjit Mondal and Tarapada Mistry purchased some land from the opposite parties Ms. Ratna Mondal and Others, and several cheques were issued by the purchasers in the name of their vendors including the opposite party, Ms. Ratna Mondal, named in their sale deed. A cheque for the amount of Rs. 1,75,000/- bearing No. 736917 dated 23.07.2007 was issued by the present petitioner, Basanta Das, one of the purchasers in favour of the opposite party, Ms. Ratna Mondal. Before the petitioner filed notice before the bank for stopping the payment of the aforesaid cheque by his letter dated 27.8.2007, the bank authority, stopped the payment and the same was informed to the opposite party by their cheque returning memo dated 31.8.2007 with the endorsement "payment stopped by the drawer". But in spite of having previous knowledge from the petitioner regarding such stopping of payment, the opposite party without replying or giving khas possession of the sold property sent demand notice to the petitioner under Section 138 of the N.I. Act demanding the amount of the said cheque on 05.09.2007. The petitioner sent reply to the said notice under Section 138 of the N.I. Act on 13.9.2007 annexing the previous notice dated 31.8.2007 which was duly received by the opposite party on 18.9.2007. But the opposite party filed the complaint case bearing No. C-722 of 2007 under Section.138 of the N.I. Act on 11. 10.2007 before the learned Additional Chief Judicial Magistrate, Sealdah, and thereafter the matter was transferred to the 2nd Court of learned Judicial Magistrate, Sealdah, for trial. The petitioner also filed a complaint case being Complaint Case No. 9643 of 2007 under Sections 420/34 of the Indian Penal Code against the opposite party in the Court of the learned Chief Judicial Magistrate, Alipore. The opposite party filed the said complaint case with the General Power of Attorney issued in favour of Samar Mondal, and that complaint petition was not signed by the payee at the time of filing the same, and that was signed by one Samar Mondal and that complaint was filed without any signature of Ms. Ratna Mondal both in the complaint petition and in the Vokalatnama, and thereafter the opposite party filed a petition praying for allowing her to sigh the complaint petition and Vokalatnama after a long period of more than one year on 7.11.2008 without sufficient cause or ground.
3. THE matter was heard by the learned Judicial Magistrate, 2nd Court, Sealdah and hearing the learned Counsel for both the sides at length, learned Magistrate allowed the petition filed by the complainant and permitted her to put signature on the petition of complaint and the Vokalatnama, and the complainant was further permitted to continue with the proceeding through her constituted Attorney Samar Mondal.
4. BEING aggrieved by and dissatisfied with the aforesaid order of the learned Judicial Magistrate, 2nd Court, Sealdah, 24-Parganas, the present petitioner has filed the instant revisional application. The opposite party is contesting the matter denying the case of the petitioner, though no Affidavit-in-Opposition has been filed.
The point for consideration in this matter is whether the learned Judicial Magistrate concerned was legal, correct, proper and justified in passing the impugned order.
5. IT is submitted by Mr. Roy, learned Counsel appearing for the petiti
