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2019 Supreme(MP) 273
Shailendra Shukla, J.
Mahendra Jain (Shri), Proprietor M/s. M. K. Electronics and Electricals, Dewas v. Mita India Pvt. Ltd.
Miscellaneous Criminal Case No. 45556 of 2018 (Indore): against the order dated 26.9.2018 passed by the IV Additional Sessions Judge, Dewas; Decided on 4.4.2019
Sumeet Samvatsar for applicant; L. Sawhney for respondent.
Headnote:
(1) Negotiable Instrument Act, 1881 -- S. 141 -- “Special attorney”, “general power of attorney” and “councel” -- appointment of councel does not amount to sub-delegation of authority of general power of attorney -- counsel can act on behalf of company for specific purpose in particular case, but does not acquire authority to run affairs of Company. [Para 10]
(2) Power of attorney -- general power of attorney executed for representing Company, without authority to sub-delegate powers -- power of attorney holder executed special power of attorney -- special power of attorney holder could not have been authorized to represent Company because this amounted to sub-delegation of powers. (2014) 11 SCC 790 and (2015) ACD 83 followed. [Paras 12 & 13]
(3) Negotiable Instruments Act, 1881 -- S. 138 r/w S. 141/142 -- competence of power of attorney holder to file complaint -- complaint filed on behalf of Company by its power of attorney holder -- no averment in complaint that power of attorney holder had knowledge of transaction -- separate affidavit filed by him that he has knowledge of transaction -- held -- statements in affidavit are separate from statements in complaint -- filing separate affidavit would not serve the purpose and would not fill the deficiency in complaint -- he is not authorized to depose on behalf of company. (2014) 11 SCC 790 followed. 2005 (2) MPLJ 419 referred to. [Para 18]
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ORDER
1. This is a petition under section 482, CrPC for quashment of order dated 26.9.2018 passed by IVth ASJ, Dewas affirming the order dated 30.1.2018 and 23.7.2018 passed by JMFC, Dewas in Criminal Complaint No. 91/2017 whereby the objection regarding Kavindersingh to depose on behalf of complainant/company was rejected.
2. As per the prosecution case, the complainant company (respondent) M/s. Mita India Pvt. Ltd. is a company registered under the provisions of the Companies Act and indulges in manufacturing of tractor and tractor parts. This company was setting up its manufacturing unit at Dewas and engaged the applicant Mahendra Jain for shifting of 33 KV electrical overhead line at Dewas plant. After completion of work, invoices were raised to the respondent company for two amounts of Rs. 2,51,278/- and Rs. 2,24,728/-. The complainant company made payments against the invoices. However, the complainant company by mistake made payment for the second time and when it was brought to the notice of the applicant, the applicant agreed to refund the excess amount and gave two cheques which were, however, dishonoured on account of stop payment directions. The respondent, through its representative Ripanjit Singh Kohli, filed a complaint under section 138 read with section 141/142 of the NI Act. The aforesaid company had executed a power of attorney in favour of Kavindersingh Anand. The power of attorney holder Kavindersingh Anand executed a special power of attorney in favour of Ripanjit Singh Kohli and Ripanjit Singh Kohli on the basis of special power of attorney had filed a complaint against the applicant. The applicant filed an application on 9.1.2018 stating that complaint is not filed by authorized person and, therefore, the complaint can not be proceeded. After hearing the parties, this application was dismissed by the trial Court vide order dated 30.1.2018. The applicant thereafter filed another application on 12.7.2018 that there is no averment in the complaint that Kavindersingh Anand is having any knowledge about the facts of the transaction, hence Kavindersingh cannot depose before the Court. This application was again dismissed by the trial Court on 23.7.2018. A criminal revision was then filed by the applicant which was, however, dismissed vide orders dated 26.9.2018. It is against the aforesaid order dated 26.9.2018, 23.7.2018 and 30.1.2018 that the applicant has filed the present petition under section 482, CrPC.
3. The main grounds contained in the petition are that first -- Kavindersingh Anand did not have the authority to sub- delegate special power of attorney to Ripanjit Singh Kohli. Second -- Kavinder singh Anand was not having any personal knowledge about the facts of the case, hence he was not authorized to depose on behalf of the company. Third -- the issue regarding incompetency to file the complaint goes to the root of the matter and learned Courts below failed to appreciate the contention urged by the applicant.
4. Terming the impugned orders as illegal, it has been prayed that the same be set aside and the petition filed by the applicant be allowed in the interest of justice.
5. The question before this Court is whether the impugned orders dated 30.1.2018, 23.7.2018 passed by the trial Court and order dated 26.9.2018 passed by the revisional Court, having passed contrary to the provisions of law, deserve to be set aside.
6. The first question arises for consideration is whether Kavindersingh Anand holding general power of attorney was authorized to sub-delegate his powers to Ripanjit singh as special power of attorney? Learned counsel took the Court through the language of general power of attorney, copy of which is placed on record. The Court was also taken through the minutes of the meeting of the Board of Directors of the company dated 1.5.2010, copy of which is also placed on record, in which it has been resolved at the end that “the draft power of attorney in favour of Kavindersingh, Director of the
