TMI Blog2005 (4) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... payment. Complainant treated it as deemed service of notice, therefore, filed a private complaint. 2. The Complainant Pushpa w/o Kailashkumar Agrawal filed a complaint in her own name representing herself through power of attorney Shri Kailashkumar Ramraj Agrawal who is her husband. In the body of complaint an averment is made that all transactions towards which the cheque was given had taken place in presence of the husband of the complainant who is her power of attorney. The amount of cheque was towards the part payment of hand loan which was paid by cheque. According to the complainant, she has done all transactions through her husband the power of attorney as well that he is the holder in due course. The complaint is signed by the complainant as well as by her power of attorney. 3. The verification statement of complainant's husband Kailashkumar Agrawal who is her power of attorney was recorded. The learned Judicial Magistrate, First Class, passed order which reads as follows : Order Presented by the complainant's power of attorney on 27-12-2001. Register as summons case. Perused complaint, verification statement with record. Heard. Accused is prima facie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is observed by the Court that if these two rulings are considered together along with the rulings filed on record by the learned advocate appearing for respondent No. 1, it is appears that a person holding power of attorney for complainant is entitled to file complaint against accused and verification of complaint can be made through any person. However, complainant must sign the complaint. In the present case all the three complaint cases are signed by the complainant. However, she presented the same in the Court through her power of attorney holder and verification statement of a person holding power of attorney for complainant is recorded by the learned lower Court. In view of the rulings cited above, I am of the opinion that as the complainant has signed all complaint cases, the complaints are in writing under the signatures of complainant. In view of the ruling cited above, the presentation of the complaint through power of attorney holder and recording of his verification statement is permissible . This judgment of Sessions Court, dated 16th July, 2004, is challenged in present application. 6. The learned Advocate for the applicant made submissions in support of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002(5) Mh.L.J. 433, Finolex Industries Ltd. v. Pravin V. Sheth and Ors.; (ii) 2007 (2) All. M.R. (Journal) 1, Nayagam Lourd Prakash v. Standard Chartered Bank, Sec'bad and Anr. (Coram : Vaman Rao, J.) The first judgment at item (i) is by His Lordship, Justice R.K. Batta, J. This was a case filed in the name of the company Finolex Industries Ltd., under Section 138 of Negotiable Instruments Act, which was signed by M/s Crawford Bayley and Company, Advocate for the complainant company. The Vakalatnama was not filed with the complaint. The Court held that since the complaint was not signed nor Vakalatnama was filed by the complainant, there was no complaint in the eyes of law. The Court found that even the compliance namely verification statement of the complainant being recorded was not curative of the defect, and the Magistrate ordered dismissing the complaint was correct. This case is thus to be regarded to be totally inapplicable to the present case. Next judgment at item (ii) was a complaint by the Standard Charted Bank, however, was filed by one Shri F.D. Irani, who was not shown to be payee or authorised by the payee Bank, but was authorised by the power of attorney ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 138 of N.I. Act in order to satisfy himself that prima facie offence has been made out. The preposition of law stated above based on Section 200 of Criminal Procedure Code is eloquent enough, however, it would be necessary to discuss the purpose for which the complainant is to be examined. What needs to be adverted to is that complainant is to be examined to bring on record Legal Evidence , and not just to have the evidence of owner of the Negotiable instrument i.e. cheque . This aspect as well is discussed in later part of this judgment. 12.(i) 2005(1) Mh.L.J. 1170, Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors., (Supreme Court) (Coram : D.M. Dharmadhikari and H.K. Sema, JJ.) (ii) 1999(3) SCC 614, T.C. Mathai and Anr. v. District and Sessions Judge, Thiruvananthapuram, Kerala (iii) 2005 ALL MR (Cri) 259 (S.C.), Jimmy Jahangir Madan v. Bolly Cariyappa Hindley (iv) 2002 A.I.H.C. 575, (Rajasthan High Court) Sikhar Chand v. Santi Kumar and Ors. (Coram : Shiv Kumar Sharma, J.) In this set of judgment relied upon by the petitioner, the question dealt with is as to whether the power of attorney can depose as witness, and as to whether function ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e procedure of lodgment of complaint, about the forum, the person who shall file it and limitation are prescribed under Section 142 of N.I. Act, for all other matters namely taking of cognizance, trial and limitation as to sentence are governed by Criminal Procedure Code. The judgments, therefore, will have to be read to lay down that barring that the cognizance will have to be taken only on a complaint filed by the class of persons prescribed by Section 138 and the forum i.e. the Magistrate who shall try it and limitation , there are no other matters prescribed by the N.I. Act and the other concerned statutes shall govern the trial viz. Criminal Procedure Code, Evidence Act, etc. The third judgment in this category relied upon by the petitioner is A. K. Roy's case (supra), where Lordships of Supreme Court deprecated delegation of power in filing a complaint. The case deals with a case under Section 20(1) of Prevention of Food Adulteration Act. The said section contemplated filing of a complaint by a person authorised in this behalf by the general or special order by the State Government or the Central Government . The scheme of the Prevention of Food Adulteration Act did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Keshvanand (vii) (7999) 3 SCC 614, T. C. Mathai and Anr. v. District and Sessions Judge, Thiruvananthapuram, Kerala (viii) 7997 Cri.L.J. 1866, H. Mohan and Anr. v. State of Karnataka (ix) 2005(1) Mh.L.J. 1170, (SC) Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. (x) 2005(1) Mh.L.J. 1179, Sheikh Ahmad Sheikh Chand Mohamad v. Kazi Nasiruddin s/o Kazi Ikramuddin (xi) 2003 All MR (Cri) Journal 105, Avon Organics, Hyd. v. Pioneer Products Ltd. and Ors. (xii) AIR 1986 SC 2160, A.K. Roy and Anr. v. State of Punjab and Ors. (xiii) 77 (2003) BC 173, (A.P. High Court), RBF Nidhi Ltd. and ANR. v. State of A.P. and Ors. (xiv) III (2002) BC 77 (DB) (A.P. High Court), S.P. Sampathy v. Smt. Manju Gupta and Anr. All these judgments relied upon by Advocate Shri Chandurkar are based on a preposition that; (i) a dishonoured cheque could be presented on any number of occasion; (ii) the complaint could be maintainable if filed by power of attorney; (iii) in the event the statement of complaint is not recorded, it would be a defect of curable nature and shall not by itself entail the result of dismissal of the complaint. 17. After examining the issues brought before this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the back or face thereof or on a slip of paper annexed thereto, or so signs for the same purpose a stamped paper intended to be completed as a negotiable instrument, he is said to endorse the same, and is called the endorser . Section 27. Agency -- Every person capable of binding himself or of being bound, as mentioned in Section 26, may so bind himself or be bound by a duly authorised agent acting in his name. A general authority to transact business and to receive and discharge debts does not confer upon an agent the power of accepting or endorsing bills of exchange so as to bind his principal. An authority to draw bills of exchange does not of itself import an authority to endorse. 19. The above definition are quoted in order to have a ready view thereof since the very purpose of utilization of cheque as a bill of exchange is as a mechanism of trade and business has to be kept in mind. Delivery of a cheque stands for payment in cash and it is for this reason its dishonour has been brought into the fold of attracting criminal liability. In the circumstances, as defined and provided by Section 138 of N. I. Act, the person who is entitled for receiving money unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Instrument Act is of 1881 and before it came into existence the law governed Powers of Attorney Act namely 39 of Act of 28 of 1866 existed. By the Powers of Attorney Act of 1882, the law as it existed related to execution of power of attorney and conferring of authority came into existence, deals with an instrument titled as power of attorney which is defined as follows :-- 1-A. Definition. -- In this Act, power-of-attorney includes any instrument empowering a specified person to act for and in the name of the person executing it. 2. Execution under power-of-attorney -- The donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed or done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof. This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force . Thus the concept of power of attorney did exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording such examination as is noticed in various reported precedents as is observed by this Court in case of Vasant Waman Pradhan v. Shri Dattatraya Vithal Salvi and Anr., 2004(1) Mh.L.J. 487 = 2003 All. MR (Cri) 2523. 17. It is pertinent to note that word examination has been used in Section 200 of the Code which means that the Magistrate is obliged to put questions to such complainant and to elicit the answers from his. This section enjoins a judicial duty to be performed and it requires application of judicial mind while examining such complainant on oath. The said work is not to be left to the clerk working in such Courts. It is to be noted that when such complainant is examined on oath by Court, he is interrogated for such examination, the truth is very likely to surface because complainant knows that he is being examined on oath by the Magistrate. Generally the complaints are drafted by lawyers or their clerks at the say of the complainant and such formulated conversation is presented before the Magistrate when the complaint is filed. Therefore, in that context also such examination is the best way of surfacing the truth on record. In such examination the complainant in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... primary evidence as defined under Section 62 of the Evidence Act, as far as documentary evidence is concerned. While as far as oral evidence is concerned, it has to be by direct evidence under Sections 59 and 60 thereof. It is, therefore, considered necessary to quote Section 60 of Evidence Act for its ready reference :-- 60. Oral evidence must be direct. -- Oral evidence must, in all cases whatever, be direct; that is to say -- If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds .............. It shall thus be clear that whenever any fact to be proved is in relation to oral as well as documentary evidence, and the proof of facts is to be by direct evidence. 26. Now the poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. 146. Bank's slip prima facie evidence of certain facts. -- The Courts shall, in respect of every proceeding under this chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disapproved. Above quoted sections which have been introduced by amendment in the N. I. Act by Act No. 55 of 2002, brings in an overriding effect to what is provided in Criminal Procedure Code. For testing the truth and surfacing the fact which is the object of sworn statement of the complainant or evidence of the complainant and the witnesses, as contemplated by Section 200 of Criminal Procedure Code, the procedure prescribed would enable the Judge to act on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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