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IN THE HIGH COURT OF DELHI
S. Muralidhar, J.
Ravi Gupta - Appellants
Vs.
R.C. Tiwari - Respondent
Crl. M.C. 3019/2006 and Crl. M.A. No. 4950 of 2006, Crl. M.C. 3022/2006 and Crl. M.A. No. 4953/2006, Crl. M.C. 3023/2006 and Crl. MA. No. 4954/2006, Crl. M.C. 3037/2006 and Crl. M.A. No. 4973/2006 and Crl. M.C. 3056/2006 and Crl. MA. 4998 of 2006
Decided On: 27.03.2008
Section 138 - Negotiable Instruments Act - 138, 142, 205, 302 of Cr.P.C. - The court discussed the legality of filing a complaint under Section 138 of the Negotiable Instruments Act through a power of attorney (POA) holder. The court referred to various judgments including Jimmy Jahangir Madan v. Bolly Cariyappa Hindley, Vishwa Miner v. O.P. Poddar, and S.P. Sampathy v. Manju Gupta to establish that a complaint under Section 138, NI Act can be filed by a complainant through a POA holder, subject to seeking permission from the Court concerned and providing a valid POA executed by the complainant. The court also highlighted the requirement for the complainant to apply for permission to pursue the complaint through a POA holder and the sufficiency of the examination of the POA holder upon oath at the time of presentation of the complaint.
Fact of the Case:
The accused was summoned in multiple complaints for the offence under Section 138, NI Act, based on allegations of dishonored cheques. The accused filed petitions seeking the quashing of the complaints on the grounds that they were filed by the complainant through a POA holder and that the same person cannot be a POA holder of individuals, firms, and companies at the same time.
Finding of the Court:
The court dismissed the petitions, finding that the complaints filed through a POA holder were consistent with the law and the decision of the learned MM in permitting the complaints to be filed through a POA was in line with legal precedents.
Issues: The main issue was whether a complaint under Section 138, NI Act can be filed by the complainant through a POA holder and whether the same person can be a POA holder of individuals, firms, and companies at the same time.
Ratio Decidendi: The court established that a complaint under Section 138, NI Act can be filed through a POA holder, subject to seeking permission from the Court concerned and providing a valid POA executed by the complainant. The sufficiency of the examination of the POA holder upon oath at the time of presentation of the complaint was also highlighted.
Final Decision: The petitions seeking the quashing of the complaints were dismissed, and the objections raised by the petitioner to the filing of the complaints through a POA holder were negatived.
Key Points: - A complaint under Section 138 NI Act can be filed through a POA holder, subject to seeking permission from the Court concerned and providing a valid POA executed by the complainant (!) (!) (!) - The complaint filed through a POA must be accompanied by a copy of the deed of POA; examination of the POA holder on oath at the time of presentation suffices for compliance with Cr.P.C. procedure; the original need for future oath by the complainant is not required (!) (!) - The Court may take cognizance and issue summons only if the POA and its validity are established; several authorities and decisions support filing through POA with Court permission, and the same person may hold POA for individuals and entities at the same time is not barred by law as per these rulings (!) (!) - Jimmy Jahangir Madan clarifies that a complainant must seek permission to pursue the complaint through a POA, and the POA cannot act without such permission; the complainant or legal heirs must apply for permission or grant it to the POA holders (!) (!) - The present Delhi Court followed and summarized the legal position: permissible to file via POA with court permission; require the POA document and examination of the POA holder on filing; no need for the complainant’s future oath unless specifically required by procedure (!) (!) (!) - The Petition dismissed; no costs; copy of order to MM handling the cases within five days (!) (!) - For the exceptions, Complaint No. 460/1 of 2005 filed in an individual capacity was treated differently; generally, filing through POA is allowed (!) (!)
S. Muralidhar, J.
1. The point for consideration in these petitions under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) is whether a complaint under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) can be filed by a complainant through a power of attorney (POA).
2. The petitioner is the accused in Complaint Case Nos. 460/1 of 2005 titled R.C. Tiwari v. Ravi Gupta 461/1 of 2005 titled Tulshan International v. Ravi Gupta 622/1 of 2005 titled Sarla Tulshan v. Ravi Gupta 462/1 of 2005 titled Kanishka Enterprises Limited v. Ravi Gupta and 621/1 of 2005 titled J.M. Bhasin v. Ravi Gupta pending in the Court of learned Metropolitan Magistrate (MM), Delhi. The petitioner has been summoned in these complaints for the offence under Section 138, NI Act.
3. The allegations in the complaints are more or less similar. It is stated that cheques for various sums of moneys drawn by the accused in favor of the complainant when presented to the bank for payment were returned dishonoured with the remarks funds insufficient. With no payment having been made despite demand notices, the complaints were filed.
4. Crl. M.C. 3019 of 2006 seeks the quashing of Complaint Case No. 460/1 of 2005 titled Shri R.C. Tiwari v. Shri Ravi Gupta. The complaint is about the dishonor of cheque No. 085312 dated 6th December, 2004 for a sum of Rs. 5 lakh and cheque No. 386087 dated 7th December, 2004 for a sum of Rs. 5 lakh in alleged discharge of the liability towards repayment of loans taken from the complainant by the accused.
5. Crl. M.C. 3022 of 2006 seeks the quashing of Complaint Case No. 461/1 of 2005 titled Tulshan International v. Ravi Gupta in respect of three cheques: cheque No. 386091 dated 8th December, 2004 for a sum of Rs. 5 lakh, cheque No. 386093 dated 9th December, 2004 for a sum of Rs. 5 lakh and cheque No. 085311 dated 9th December, 2004 for a sum of Rs. 5 lakh. Each of these cheques when presented for payment was returned with the remarks funds insufficient. This Complaint Case No. 461/1 of 2005 indicates that it is filed on behalf of the firm Tutehan International, a partnership firm, through its POA holder Shri R.C. Tewari.
6. It is accompanied by evidence by way of an affidavit of Shri R.C. Tewari. The complaint has been signed by Saroj Hegde for the complainant and the first paragraph of the complaint says that the firm has authorised Shri R.C. Tiwari to prosecute the complaint. The POA executed in favor of Shri R.C. Tiwari has been placed on record. The learned MM by an order dated 14th February, 2005 summoned the accused under Section 138, NI Act. The recall of the summoning order was sought by the Petitioner but that application was dismissed by a detailed order dated 3rd February, 2006.
7. Crl. M.C. 3023 of 2006 seeks the quashing of Complaint Case No. 622/1 of 2005 titled Sarla Tulshan v. Ravi Gupta in respect of cheque No. 386094 dated 31st December, 2004 for a sum of Rs. 5 lakh. Ms. Sarla Tulshan again filed this complaint through her POA Shri R.C. Tiwari and a copy of the POA was enclosed with the complaint as Annexure A. The cheque when presented for payment was returned with the remarks account closed. By an order dated 18th March, 2005, the learned MM summoned the Petitioner under Section 138, NI Act. The petition seeking recall of the said order was dismissed on 6th October, 2006.
8. Crl. M.C. 3037 of 2006 seeks the quashing of Complaint Case No. 462/1 of 2005 titled Kanishka Enterprises Limited v. Ravi Gupta in respect of three cheques: cheque No. 386088 dated 9th December, 2004 for a sum of Rs. 5 lakh, cheque No. 386089 dated 9th December, 2004 for a sum of Rs. 5 lakh and cheque No. 386090 dated 9th December, 2004 for a sum of Rs. 5 lakh. This complaint is signed by an authorized person for the complainant and filed through its POA holder Shri R.C. Tiwari. The cheques when presented for payment were returned with the remarks funds insufficient. The application for recall was dismissed by the le
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