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2024 Supreme(Online)(DEL) 16087
HIGH COURT OF DELHI
Anish Dayal, J
SANDEEP SHARMA – Appellant
Versus
VIKRAM KUMAR PANDEY – Respondent
CRL.M.C.-1524/2024
A complaint under Section 138 of the NI Act can be filed through a Power of Attorney, and any defects in authority can be ratified by a subsequent document, which relates back to the original act.
Headnote:(A) Code of Criminal Procedure, 1973 - Sections 251 and 256 - Negotiable Instruments Act, 1881 - Section 138 - Revision petition dismissed against the order of MM dismissing application for dismissal of complaint for non-prosecution due to lack of authority of complainant's attorney - The court held that the Special Power of Attorney (SPOA) executed by the complainant's brother was valid for instituting the complaint, and any technical defect was curable by a subsequent SPOA. (Paras 1, 6, 35, 41)
(B) Power of Attorney - Validity of complaint - A complaint can be filed through a Power of Attorney, and the authority can be ratified by a subsequent document, which relates back to the date of the original act. (Paras 36, 38)
Facts of the case:
The petitioner sought to set aside the dismissal of a complaint under Section 138 of the NI Act, arguing that the initial SPOA did not authorize the attorney to file the complaint against him. The complainant was residing abroad and had executed a SPOA in favor of his brother. (Paras 3, 4, 6)
Findings of Court:
The court found that the initial SPOA was validly ratified by a subsequent SPOA, allowing the complaint to proceed. The dismissal of the petition was justified as the complaint was filed by the payee. (Paras 35, 41)
Issues: The main issues were whether the initial SPOA was valid for filing the complaint and if the subsequent SPOA rectified any defects. (Paras 10, 15)
Ratio Decidendi: The court ruled that the complaint was validly instituted through the SPOA, and any technical defects were curable, emphasizing that the ratification of authority relates back to the original act. (Paras 36, 38)
Result: Petition dismissed.
JUDGMENT
ANISH DAYAL, J.
1. This petition has been filed seeking setting aside of order dated 31st January 2024 passed by ASJ, South West, Dwarka Court in Crl. Revision No. 412/2023.
2. By the said impugned order, a revision filed by petitioner was dismissed which in turn had impugned order dated 25th May 2023 passed by MM (NI Act), South West, Dwarka Courts in CC No. 29/2020, dismissing the application under Section 251 of the Code of Criminal Procedure 1973 (‘ Cr.P.C ’). read with Section 256 Cr.P.C . filed by petitioner.
Factual Background
3. The background facts are that the complainant alleged that the petitioner had approached the respondent by introducing himself as a friend of the respondent's wife. On that basis the respondent provided a friendly loan of Rs. 20 lakhs to the petitioner.
4. On 19th September 2019, two agreements were executed between the parties and the petitioner issued two cheques drawn on Induslnd Bank for Rs. 10 lakhs each in lieu of the loan. On 21st September 2020, the cheques were presented but were returned unpaid on 23rd September 2020 with the remark “payment stopped by drawer”.
5. On account of non-payment of cheque, a legal notice was issued and a complaint was filed under Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’). Summons were issued on 28th November 2020. The petitioner/ accused appeared and furnished bail bonds. On the basis of submission of the parties the complaint was sent to the Mediation Cell for exploring the possibility of a settlement. Subsequently, mediation was reported to have failed.
6. In March 2022, the petitioner filed an application under Section 251 read with Section 256 Cr.P.C , on the grounds that the complaint was not filed by a competent person as the Power of Attorney (‘POA’) had not given the right to the attorney to institute the complaint against petitioner. A response was filed by respondent followed up by a permission to place on record fresh Special Power of Attorney (‘SPOA’) executed on behalf of the respondent.
7. The MM passed an order dismissing the application of the petitioner on 25th May 2023, against which a revision petition was filed which was also dismissed by the impugned order.
Focal submissions on behalf of the Petitioner
8. The issue relates to whether the complaint filed basis a SPOA executed by complainant valid for the purpose of instituting the said complaint against the accused. It is an admitted fact that the complainant, Mr. Vikram Kumar Pandey, is working in the UAE and residing there. The complaint was based on a SPOA dated 22nd September 2020 executed by his brother in favour of Mr. Vivek Kumar Pandey. The substantive part of the said SPOA is extracted as under:
“1. To represent me/ initiate appropriate proceedings before the courts in New Delhi, India to all intents and purpose in connections with the criminal complaint and other proceedings filed against me by Ms. Vartika Sharrha.
2. To do all acts and things including to sign, verify, institute and present application/petitions for anticipatory bail, plaints, petitions, complaints (civil and criminal), applications, appeals, revisions, reviews, representations, various replies, affidavits and written statements etc.; to sign, affirm and declare affidavits; to appear, represent and defend my interest in a court of law and before other authorities and to do all acts and deeds as may be necessary and incidental to any legal proceedings in India initiated by me or against me.
3. To engage and appoint any solicitor, advocate or advocates or counsel to act and plead and otherwise conduct the said case whenever my said attorney think proper to do so.
4. To do all other lawful acts and things in connection with the case as effectually as I could do the same lawfully do. I do hereby agree to ratify and confirm.”
9. Petitioner’s counsel alleged that the SPOA was specifically for instituting proceedings and doing other acts in relation thereto filed by complainant, against Ms. Vartika
