Point of Law: Functions under general power of attorney cannot be delegated to another person without specific clause permitting same in power of attorney.

JUDGMENT :

Jyotsna Rewal Dua, J.

Cr.MP(M) No. 868 of 2023

Leave to appeal granted. The application to stand disposed of.

Appeal be registered.

Cr. Appeal No.212 of 2023

2. The appellant filed a complaint under Section 138 of the Negotiable Instruments Act (the Act in short) through his father and General Power of Attorney (GPA in short) Sh. Jagdish Chand. Learned Trial Court on 27.02.2023 dismissed the complaint on the ground that it did not satisfy the parameters concerning filing of complaint through GPA, laid down in (2014)11 SCC 790 (A.C. Narayanan Vs. State of Maharashtra and another). Feeling aggrieved, the appellant-complainant has preferred the present appeal.

3. Facts

The appellant had preferred the complaint under section 138 of the Act through his father and GPA. It was submitted in the complaint that: -

3(i) The appellant-complainant was owner of a bus. On account of getting a job abroad, the appellant-complainant entered into an agreement with the respondent-accused on 22.09.2020. As per this agreement, the appellant-complainant handed over possession of the bus to the respondent-accused for plying at the agreed monthly rent of Rs.8000/-.

3(ii) On 15.10.2020, the respondent-accused visited the appellant-complainant at his house and expressed his need for loan of Rs.3,50,000/-. The respondent assured repayment of entire amount in June 2021. At the request of the respondent, the appellant-complainant paid him Rs.3,50,000/-. The respondent-accused also had the financial liability of Rs.70,000/- towards the appellant -complainant on account of rent of the bus for a period of six months. Thus, in all, a sum of Rs. 4,20,000/- was to be paid by the respondent-accused to the appellant-complainant. In lieu of Rs. 4,20,000/-, the respondent-accused issued a cheque to the appellant-complainant drawn from Punjab National Bank.

3(iii) The respondent-accused did not return the loan amount. As per instructions of the respondent-accused, the appellant-complainant in the month of June, 2021 presented the cheque in his bank. The same was returned unpaid for the reasons “drawer’s signatures differ”.

3(iv) On behalf of the appellant-complainant, his GPA Sh. Jagdish Chand appeared in the witness box as CW-1. He also tendered in evidence, the documents Ex.C-1 to Ex.C-7 i.e. affidavit, cheque, return memo. demand notice, postal receipt, RAD and track consignment. The copy of GPA was marked as ‘X’. The respondent-accused was examined under Section 313 of the Code of Criminal Procedure. He denied borrowing any money from the appellant-complainant. He, however, admitted financial liability of Rs.24000/- towards the appellant-complainant on account of rent of the bus. The respondent-accused produced one Sultan Singh in his defence, who was examined as DW-1.

3(v) On considering the entire case, learned Trial Court dismissed that the complaint filed by the appellant-complainant Satish Kumar through his father and GPA Sh. Jagdish Chand. In the given facts of the case and the evidence adduced by the parties and on considering the law in A.C. Narayanan’s case supra, the complaint was held to be not proper. The respondent-accused was acquitted from the accusation of having committed offence punishable under Section 138 of the Act.

In the aforesaid factual background, the appellant-complainant Satish Kumar has preferred the instant appeal.

4. Observations

I have heard learned counsel for the parties and also considered the record of the case.

4(i) It is not in dispute that the complaint was filed by Satish Kumar through his father and GPA Jagdish Chand. In A.C. Narayanan’s case supra, Hon’ble Apex Court has held that filing of complaint through the Power of Attorney is perfectly legal and competent. The Power of Attorney holder can depose and verify on oath to prove the contents of the complaint. However, the power of attorney must have witnessed the transaction or possess due knowledge of the same. The complaint filed through the power of attorney holder must con