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2019 Supreme(Del) 2585
IN THE HIGH COURT OF DELHI
Anu Malhotra, J.
Rakesh Arora - Appellants
Vs.
Hamdard (Wakf) Laboratories - Respondent
Crl. M.C. Nos. 2811, 2814 and 2815/2016
Decided On : 04-06-2019
For the Appellant :T.K. Ganju, Sr. Adv. and Rohit Gandhi, Advocate
For the Respondents: Pawan Upadhyay, Adv.
A complaint under Section 138 of the Negotiable Instruments Act, 1881 cannot be issued upon the deposition of a power of attorney having no knowledge of the facts and circumstances of the case and not directly involved in the sequence of events. A Trust is not a legal entity and no single trustee can sue in the name of the Trust. A Power of Attorney given by the Chief Mutawalli in favor of a Power of Attorney holder is not valid if the Chief Mutawalli has since expired.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 138 - NEGOTIABLE INSTRUMENTS ACT - SUMMONING ORDER - QUASHING - POWER OF ATTORNEY HOLDER - PERSONAL KNOWLEDGE - VERIFICATION - JURISDICTION - MAINTAINABILITY - TRUST - LEGAL ENTITY - WAQF - VALIDITY - CHIEF MUTAWALLI - SOLE SURVIVING - DEATH - APPOINTMENT OF NEW CHIEF MUTAWALLI - REDRESSAL.
Fact of the Case:
Petitioner challenged the summoning order issued against him in three complaints cases filed by the respondent for the alleged commission of offences punishable under Section 138 of the Negotiable Instruments Act, 1881. The complaints were based on the deposition of a Power of Attorney holder who had no personal knowledge of the facts and circumstances of the case. The petitioner also contended that the complaints were not maintainable as they were filed by a single trustee of the Trust, which is not a legal entity, and that the Power of Attorney given by the Chief Mutawalli in favor of the Power of Attorney holder was not valid as the Chief Mutawalli had since expired.
Finding of the Court:
The Court held that the summoning orders were not maintainable as the complaints were based on the deposition of a Power of Attorney holder who had no personal knowledge of the facts and circumstances of the case. The Court also held that the complaints were not maintainable as they were filed by a single trustee of the Trust, which is not a legal entity, and that the Power of Attorney given by the Chief Mutawalli in favor of the Power of Attorney holder was not valid as the Chief Mutawalli had since expired.
Issues: 1. Whether the summoning orders were maintainable when the complaints were based on the deposition of a Power of Attorney holder who had no personal knowledge of the facts and circumstances of the case? 2. Whether the complaints were maintainable when they were filed by a single trustee of the Trust, which is not a legal entity? 3. Whether the Power of Attorney given by the Chief Mutawalli in favor of the Power of Attorney holder was valid when the Chief Mutawalli had since expired?
Ratio Decidendi: 1. The Court held that the summoning orders were not maintainable as the complaints were based on the deposition of a Power of Attorney holder who had no personal knowledge of the facts and circumstances of the case, relying on the Supreme Court judgment in A.C. Narayanan Vs. State of Maharashtra and Anr. (2014) 11 SCC 790, which held that no notice can be issued on a complaint under Section 138 of the Negotiable Instruments Act, 1881 upon the deposition of a power of attorney having no knowledge of the facts and circumstances of the case and not directly involved in the sequence of events. 2. The Court held that the complaints were not maintainable as they were filed by a single trustee of the Trust, which is not a legal entity, relying on the judgment of the Delhi High Court in Duli Chand vs. Mahabir Pershad Trilok Chand Charitable Trust AIR 1984 Delhi 145, which held that the trustees are joint owners of the trust property and a Trust does not have a legal existence of its own and no single trustee can sue in the name of the Trust and all trustees must be impleaded in the suit. 3. The Court held that the Power of Attorney given by the Chief Mutawalli in favor of the Power of Attorney holder was not valid as the Chief Mutawalli had since expired.
Final Decision: The Court quashed the summoning orders and held that it would be open for the respondent to seek redressal in accordance with law in relation to the dishonored cheques.
JUDGMENT ;
Anu Malhotra, J.
1. The three petitions bearing CRL. M.C. No. 2811/2016, CRL. M.C. No. 2814/2016 & CRL. M.C. No. 2815/2016 filed by the same petitioner Shri Rakesh Arora against the same respondent Hamdard (Wakf) Laboratories seek the quashing of the summoning order dated 22.03.2006 in CC No. 2174/2001, order dated 02.12.2005 in CC No. 2175/2001 and order dated 27.04.2006 in CC No. 2176/2001 whereby the petitioner herein has in each of the said cases been summoned for the alleged commission of the offences punishable under Section 138 of the Negotiable Instrument Act, 1881. The said three orders read to the effect:
(i) Order dated 22.03.2006 in CC No. 2174/2001:-
"File received on transfer. It be checked and registered as per rules.
Affidavit of CW1 Sh. Javed Akhtar filed in pre-summoning evidence of the complainant. Be taken on record.
I have gone through the material available on record. I found sufficient material on record to summon the accused for the offence U/S. 138 of the Negotiable Instruments Act. 1 hereby take the cognizance of the offence and summon the accused of trail.
Issue summons to the accused on the filing of PF/RC/Speed Post/Courier for 03.08.2006."
(ii) Order dated 02.12.2005 in CC No. 2175/2001:-
"I have perused the file and documents placed on record. From document placed on record and taken into consideration the affidavit, a prima facie case under Section 138 N.I. Act is made out against the accused be summoned on PF/RC and by courier DTDC. Put up for report on 23.02.2006."
(iii) Order dated 27.04.2006 in CC No. 2176/2001:-
"Affidavit of pre-summoning evidence has already been filed on record on behalf of the complainant. I have gone through the contents of the complaint, affidavit in pre-summoning evidence and documents in support of the complaint. After going through all the material available on record, I found sufficient material on record to take cognizance of the offence under Section 138 of the Negotiable Instruments Act. I hereby take the cognizance of the offence U/S. 138 of the Negotiable Instrument Act and summon the accused for the offence and to try him for the offence."
2. The chief contention raised through the petitions is that the said three complaint cases in which the summoning orders have been issued are not maintainable in as much as the summons had been issued on the basis of the deposition of a Power of Attorney holder who had no personal knowledge of the facts and circumstances of the case and without any specific assertions as to the knowledge. The petitioner further submits that the deposition that has been made through the pre-summoning evidence is of Shri Javed Akhtar who has also signed the complaint alleging himself to be the power of attorney holder of the complainant. The petitioner has further submitted that the said power of attorney has been filed as alleged to be executed by Shri Abdul Mueed, Chief Mutwali and that in the entire complaint or the affidavit there is no whisper as to how the said alleged Power of Attorney holder had the personal knowledge of the facts and circumstances of the case and as to how he was directly involved in the sequence of events. The petitioner has further submitted that in terms of the verdict of the Hon'ble Supreme Court in A.C. Narayanan Vs. State of Maharashtra and Anr. (2014) 11 SCC 790, no notice can be issued on a complaint under Section 138 of the Negotiable Instruments Act, 1881 upon the deposition of a power of attorney having no knowledge of the facts and circumstances of the case and not directly involved in the sequence of events.
3. Inter alia the petitioner has submitted that the complaints are also not maintainable in as much as they are based on a power of attorney allegedly given in the name of the Trust by Shri Abdul Mueed, Chief Mutwalli and that a Trust is not a legal entity and as such neither the Trust nor a single Trustee can sue in the name of the Trust and all the trustees being the legal entity are bound to joi
