TMI Blog2019 (6) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... an evacuee and his share was taken possession of by the Custodian of Evacuee Property and thus Mr. Hakim Abdul Hameed, Executant No.1 became the sole surviving Wakif-Mutawalli and all rights, powers and duties of Wakif Mutawalli conferred by the Deed thus vested in him and it was mentioned thereby that he would be construed to mean the sole surviving Wakif-Mutawalli in relation to the all rights, powers and duties provided for the Wakif Mutawallis in the Wakf Deed as it has been submitted through the submissions made on behalf of the petitioner and which have not been refuted on behalf of the respondent that even the said Shri Hakim Abdul Hameed who executed the Power of Attorney in favour of Javed Akhtar has since expired, there is nothing that has been put forth on the record by the respondent to indicate that there is any other Chief Mutawalli that has been appointed apart from the factum that it has already been laid down by this Court that the respondent is not a Wakf. Petition not maintainable and the summoning orders are thus quashed. - Crl.M.C.No.2811/2016, Crl.M.C.No.2814/2016 and Crl.M.C.No.2815/2016 - - - Dated:- 4-6-2019 - MS. ANU MALHOTRA J. Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of Trust dated 6.9.1950 duly registered before Sub-Registrar Delhi on 12.9.1950 and amended Wakf Deed dated 1973. The complainant has its registered office at the address aforementioned and Sh. Javed Akhter, law officer in 1995 and presently Deputy Manager (Law) is the duly authorized Power of Attorney holder of the complainant authorized vide Power of Attorney dated 15.5.1995 issued in his favour by the Chief Mutwalli of the complainant. Thus, Sh. Javed Akhtar is fully competent to file, institute and verify the present complaint before the Hon ble Court and the same has been accordingly duly signed verified and instituted by Sh. Javed Akhter. 6. In fact virtually all paragraphs till para 12 of each of the complaints are identical and read to the effect: i. That the complainant is a Wakf constituted under a Wakf Deed dt.28.8.1948 and registered as a trust by declaration of Trust dated6.9.1950 duly registered before Sub-Registrar Delhi on 12.9.1950 and amended Wakf Deed dated 1973. The complainant has its registered office at the address aforementioned and Sh. Javed Akhter, law officer in 1995 and presently Deputy Manager (Law) is the duly au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x. That, however, despite the numerous letters of complainant the accused kept on delaying the payment on the pretext or the other and after repeated consultations and meetings wherein the accused expressed his financial disability to clear the huge outstanding in one go and it was decided in July, 2004 that the accused will start making the payment of ₹ 20 lacs per month w.e.f. January, 2005 by way of two fortnight cheques of approximately ₹ 10 lacs each and in this manner, the accused will clear the payment of ₹ 70 lacs within three months and once the accused shows his bonafide in clearing the part payment further time to clear the balance payment of ₹ 7 crores would be decided mutually between complainant and the accused. xi. That in accordance with the above understanding, the accused duly tendered to the complainant seven cheques of approximately ₹ 10 lacs each duly filled up by the accused in October, 2004 itself. xii. That these cheques, so issued by the accused, were to be deposited for encashment w.e.f. 15.1.2005 and the complainant duly believing above understanding arrived at that the accused deposited the cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Code, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I. Act. It is only if and where the Magistrate, after considering the complaint under Section 138 of the N.I. Act, documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness(s) is required, the Magistrate may call upon the complainant to remain present before the Court and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. 30) In the light of the discussion, we are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the N.I. Act. An exception to the above is when the power of attorney holder of the complainant does not have a personal knowledge about the transactions then he cannot be examined. However, where the attorney holder of the complainant is in charge of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition and answer the questions in the following manner: 33.1 Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent. 33.2 The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions. 33.3 It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case. 33.4 In the light of section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken the said pre-summoning evidence into account apart from the other documents on the record and the process has thus been directed to be issued. Substantially, thus, the implicit conditions of the affidavit to the complaint and the verification of the averments of the affidavit stand satisfied. 12. The other aspect which needs consideration is that it has been contended by the petitioner that the verifications in each of the three pre-summoning affidavits indicate that none of them have been verified to the knowledge of the General Power of Attorney holder and thus the observations in para 30 of the verdict of the Hon ble Supreme Court in A.C. Narayanan (supra) do not stand fulfilled in as much as the explicit assertions as to the knowledge of the power of attorney holder about the transaction in question has not been specified in the complaint. It has also been submitted on behalf of the petitioner that the observations in para 33.2 and 33.3 of the said verdict have also not been fulfilled in as much as the stated general power of attorney holder of the complainant has not verified that he has witnessed the transaction as an agent of the payee/holder in due course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii. I state that I was the, law officer of the complainant in 1995 and am presently Deputy Manger (Law) and as such duly authorised Power of Attorney holder of the complainant authorised vide Power of Attorney dated 15.5.1995 issued in my favour by the Chief Mutwalli of the complainant. That the copy of the power of attorney in my favour is Exhibited as Ex. CW 1/2. iii. I state that the complainant is one of the reputed manufacturers of Unani and Ayurvedic Medicine besides various other consumers goods like Roohafza Saafi, Roghan, Badam Shirin, etc. for over 50 years. iv. I state that the accused in the course of his business approached the complainant and after due deliberations and negotiations, the accused was made a distributor of the complainant. v. I state that the accused is running his business in the name and style of M/s. Arora Sales Corporation and has been dealing with the complainant for last more than 10 years. vi. I state that the accused during the period of his distributorship took various consignments from the complainant for which invoices were duly supplied to the accused. vii. I state that as the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these cheques, so issued by the accused, were to be deposited for encashment w.e.f. 15.1,2005 and the complainant duly believing above understandings arrived a, with the accused deposited die firs, cheque of ₹ 10,00,005/. bearing No. 365829 with its bankers Bank of India, Hamdard Dawakhana Branch, Hamdard Marg, Delhi-6 on, 15.1.2005 for encashment. However, to the disappointment of the complainant, the said cheque was dishonoured by the Bankers of the accused i.e. Karnataka Bank Ltd., Connaught Place, New Delhi vide returning memo dated 17.1.2005 for the reasons of insufficient funds in the account No. a813 of the accused. That the original dishonoured cheque bearing No. 365829 is exhibited as Ex. CWI/ 4 and the original cheque returning memo dated 17.1.2005 issued by the banker of the accused is Exhibited as Ex. CW1/5. xiv. I state that, soon thereafter, the accused contacted the complainant for the inconvenience caused due to dishonour of the said cheque and assured that future cheques will be duly honoured and thus requested the p complainant to present the dishonoured cheque after the payment of all the rest cheques were cleared. xv. 1 state that be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable in the office of the complainant as also on the basis of the interaction between the complainant and the accused and nothing material has been concealed from the above affidavit of mine. (2) Affidavit in CC No.2175/2001:- i. I state that the complainant is a Wakf Constituted under a Wakf Deed dt: 28.8.1948 having ifs registered office a. the address aforementioned the copy of wakf deed dt: 28.8.1948 is exhibited as Ex CW1/1. ii. I state that I was the, law officer of the complainant in 1995 and am presently Deputy Manger (Law) and as such duly authorised Power of Attorney holder of the complainant authorised vide Power of Attorney dated 15.5.1995 issued in my favour by the Chief Mutwalli of the complainant. That the copy of the power of attorney in my favour is Exhibited as Ex. CW 1/2. iii. I state that the complainant is one of the reputed manufacturers of Unani and Ayurvedic Medicine besides various other consumers goods like Roohafza Saafi, Roghan, Badam Shirin, etc. for over 50 years. iv. I state that the accused in the course of his business approached the complainant and after due deliberations and negotiations, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in three months and once the accused shows his bona fide in clearing the part payment further time to clear the balance payment of ₹ 7 crores would be decided mutually between complainant and the accused. xii. I state that in accordance with the above understandings, the accused duly rendered to the complainant seven cheques of approximately ₹ 10 lacs each duly filled up by the accused in October, 2004 itself. xiii. I state that these cheques, so issued by the accused, were to be deposited for encashment w.e.f. 15.1.2005 and the complainant duly believing above understandings arrived at with the accused deposited the third cheque of ₹ 10,00,008/- bearing No.365832 with its bankers Bank of India, Hamdard Dawakhana Branch, Hamdard Marg, Delhi-6 on 28.2.05 for encashment. However, to the disappointment of the complainant, the said cheque was dishonoured by the Bankers of the accused i.e. Karnataka Bank Ltd., Connaught Place, New Delhi vide returning memo dated 10.3.05 for the reasons of insufficient funds in the account No. 2813 of the accused. That the original dishonoured cheque bearing No. 365832 is exhibited as Ex. CW1/ 4 and the I original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office of the complainant as also on the basis of the interaction between the complainant and the accused and nothing material has been concealed from the above affidavit of mine (3) Affidavit in CC No.2176/2001:- i. I state that the complainant is a Wakf Constituted under a Wakf Deed dt: 28.8.48 and registered as a Trust by declaration of Trust dated 6.9.1950, having it's registered office at the address aforementioned. The copy of Wakf Deed dt: 28.8.48 and copy of the declaration of Trust dated 6.9.1950 are exhibited as Ex.CW 1/1 and Ex.CWl/2 respectively. ii. I state that I was the, law officer of the complainant in 1995 and am presently Deputy Manger (Law) and as such duly authorised Power of Attorney holder of the complainant authorised vide Power of Attorney dated 15.5.1995 issued in my favour by the Chief Mutwalli of the complainant. That the copy of the power of attorney in my favour is Exhibited as Ex. CW 1/3. iii. I state that the complainant is one of the reputed manufacturers of Unani and Ayurvedic Medicine besides various other consumers goods like Roohafza Saafi, Roghan, Badam Shirin, etc. for over 50 years. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortnightly cheques of approximately ₹ 10 lacs each and in this manner, the accused will clear the payment of ₹ 70 lacs within three months and once the accused shows his bona fide in clearing the part payment further time to clear the balance payment of ₹ 7 crores would be decided mutually between complainant and the accused. xii. I state that in accordance with the above understandings, the accused duly rendered to the complainant seven cheques of approximately ₹ 10 lacs each duly filled up by the accused in October, 2004 itself. xiii. I state that these cheques, so issued by the accused, were to be deposited for encashment w.e.f. 15.1.2005 and the complainant duly believing above understandings arrived at with the accused deposited the third cheque of ₹ 10,00,007/- bearing No. 365831 with its bankers Bank of India, Hamdard Dawakhana Branch, Hamdard Marg, Delhi-6 on 14.2.2005 for encashment. However, to the disappointment of the complainant, the said cheque was dishonoured by the Bankers of the accused i.e. Karnataka Bank Ltd., Connaught Place, New Delhi vide returning memo dated 3.0.4.2005 for the reasons of insufficient funds i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxiv. I state that the said cheques were dishonoured vide returning memo dated 30.4.2005, 4.4.2005 and 18.4.2005 respectively and a collective demand notice dated 3.5.2005 was issued within 30 days of the knowledge of dishonour of cheques. xxv. I state that the Hon'ble Court has the jurisdiction to entertain the present complaint as the complainant and its bankers are located within the jurisdiction of the Hon'ble Court. I state that the accused may kindly be summoned and prosecuted in accordance with the law for the offence committed by him. Verification: Verified at Delhi on this 3rd day of September, 2005 that the contents of the above affidavit of mine are true and correct and based on the records available in the office of the complainant as also on the basis of the interaction between the complainant and the accused and nothing material has been concealed from the above affidavit of mine The same thus appear to prima facie fulfil the parameters of observations in para 8 of the said verdict in the circumstances put forth. However, the same does not suffice to bring forth the maintainability of the complaints ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by or caused to the Wakf as a result of any act of commission or omission during the course of the reasonable exercise by them of any of the discretionary power in regard to the management of the affairs of the Wakf. Without prejudice to the generality of the powers and rights vested in them under clause 2 and 2-A, the following powers shall be deemed to be included in the full rights, powers and authority conferred; (a) For carrying out the multifarious affairs of the Wakf, to appoint servants, assistants, agents, brokers, factors, bankers and auditors on such terms as to salary, commission or remuneration or otherwise as the Wakif Mutawalli. shall deem fit and proper or to dismiss or remove from office any person so employed or any person who may have been so employed before the creation of the Wakf, to add to or deduct from the salary, commission, remuneration or consideration payable to any such person or to reward or remunerate any person for the services rendered to the Wakf or to compensate and indemnify anyone for the loss or damage that he has suffered or which he might suffer in relation to the services rendered by him to Hamdard Wakf or to give him any pecuni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s signatures or to delegate all or some of the powers given herein to anyone trusted by him so that he may exercise the same for and on his behalf. (e) To pledge or mortgage any of the movable or immovable properties belonging to the Wakf as security against any loans required for the purposes of the Wakf or to give on lease or hire any of the immovable or movable property or any part of it for such period and on such terms as he may deem fit and proper. (f) To transfer, sell, pledge, hypothecate or incumber in any manner according to need and for purposes of the Wakf, any of the valuable securities or shares of limited companies acquired with the Wakf-funds and to sign and execute the papers necessary for such purposes. (g) To acquire by purchase, hire-purchase, exchange, gift, bequest, mortgage or otherwise any movable and immovable property for the purposes of the Wakf business from the Wekf funds. (h) To present for registration all kinds of documents, to admit execution for purposes of registration and to receive consideration for such deeds and to give receipts for the same. (i) To file in courts all suits, prosecutions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Wakif Mutawalli shall also have a right to appoint or nominate someone else to be a Mutawalli of this Wakf after his death notwithstanding the conditions to the contrary of Mutawalliship contained herein. 18. It is thus indicated that Rabea Begum, Executant No.3 died on 5th October, 1949 and Hakim Mohammad Said, Executant No.2 was declared an evacuee and his share was taken possession of by the Custodian of Evacuee Property and thus Mr. Hakim Abdul Hameed, Executant No.1 became the sole surviving Wakif-Mutawalli and all rights, powers and duties of Wakif Mutawalli conferred by the Deed thus vested in him and it was mentioned thereby that he would be construed to mean the sole surviving Wakif-Mutawalli in relation to the all rights, powers and duties provided for the Wakif Mutawallis in the Wakf Deed as it has been submitted through the submissions made on behalf of the petitioner and which have not been refuted on behalf of the respondent that even the said Shri Hakim Abdul Hameed who executed the Power of Attorney in favour of Javed Akhtar has since expired, there is nothing that has been put forth on the record by the respondent to indicate that there is any other ..... 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