TMI Blog2014 (9) TMI 1236X X X X Extracts X X X X X X X X Extracts X X X X ..... ct can be filed through the power of attorney holder. In this case, Sudhir Gulvady is the power of attorney holder of the Appellant and he has filed the complaint on her behalf. The learned Magistrate recorded the statement of the power of attorney holder Under Section 200 of the Code on 5/3/2004 and issued summons - There can be no dispute about the fact that in this case, the power of attorney holder being the husband of the Appellant has witnessed all transactions and he possesses due knowledge about them. While holding in favour of the Appellant that the complaint can be filed by a power of attorney holder and on that ground complaint cannot be held not maintainable and that the power of attorney was very much on record, the matter is remanded to the High Court with a request that the High Court should hear both sides and decide whether the cheques in question were issued as a security or for the purpose of repayment of legally recoverable debt. Appeal allowed by way of remand. - Criminal Appeal Nos. 2065-2066 of 2014 (Arising out of Special Leave Petition (Crl.) Nos. 4682-4683 of 2012) - - - Dated:- 17-9-2014 - Ranjana Prakash Desai and N.V. Ramana, JJ. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erted that the Appellant could, at any time, cease trading and take back the said 10000 shares. On this understanding, the Appellant entrusted the said 10000 shares of Hindustan Lever Limited to the Respondents by transferring the shares from her Demat Account to that of the Respondents. On 05/03/2002 the Respondents addressed a letter acknowledging receipt of the said 10000 shares. In the month of April, 2002, the Appellant had a doubt about the intention of the Respondents. On 25/04/2002 the Appellant addressed a letter to the Respondents requesting them to return the said 10000 shares. On 20/05/2002 the Respondents replied, undertaking to return the said shares in lots of 500/10000 citing difficulties between them and their main broker as reason for delay. Another letter was addressed by the Respondents undertaking that the first lot of 500 shares would be returned by 24/05/2002 and all 10000 shares would be returned by 30/06/2002. A separate letter was addressed in relation to the monies due to the Appellant on account of dividends accruing and profits from transactions in the shares. On 25/06/2002 the Respondents sought extension of time to return the shares and confirmed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondents had failed to return the 7500 shares or make over the amounts due as promised, the Appellant presented the three cheques bearing Nos. 392942, 392943 and 392944 to her banker- the Shamrao Vithal Cooperative Bank Limited for collection on 2/1/2004. On 03/01/2004 the three cheques were returned unpaid by the Respondents' bank, under two cheque return memos citing 'insufficient funds'. On receipt of the intimation of dishonour, the Appellant issued a legal notice to the Respondents demanding payment. As the Respondents failed to pay, the Appellant, not being in good health, executed a power of attorney dated 03/03/2004 authorising her husband Sudhir Gulvady to file and prosecute the complaint against the Respondents. 5. On 03/03/2004 the Appellant filed a complaint before the jurisdictional Magistrate against the Respondents alleging offence punishable Under Section 138 of the NI Act. Although, the complaint was signed by the Appellant, it was presented before the Magistrate by the Appellant's husband Sudhir Gulvady on the strength of power of attorney. It was stated in the complaint that the Appellant was unable to come to the court as she was not keepin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir written submissions. Learned Counsel for the Appellant submitted that when the statement of the Appellant was recorded on oath, the power of attorney was produced. The High Court erroneously held that it was not produced. It was part of the trial court's record. This is clear from the fact that it bears PCR number as well as CC number. Counsel submitted that only plea raised by the Respondents before the courts below was that the Appellant's husband who is her power of attorney holder was not examined. The Respondents never raised any plea that the power of attorney was not produced. Counsel submitted that reliance of Chandrashekarappa v. Sharanabasappa 2011 (1) Kar.L.J. 444 is erroneous because it is contrary to the view taken by this Court in A.C. Narayanan v. State of Maharashtra AIR 2014 SC 630. Counsel submitted that the submission that cheques were issued as a security has no basis. They were issued in respect of a crystallized liability and this was acknowledged by Respondent 1 in his letters. Counsel submitted that in the circumstances, the impugned order deserves to be set aside. 12. Learned Counsel for the Respondents, on the other hand, submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court. The fact that this submission was not raised in the trial court and in the lower appellate court weakens its force. The High Court, in our opinion, erred in entertaining such a belated argument. Having entertained the argument, the High Court dealt with it in a very perfunctory manner. The High Court observed that Sudhir Gulvady, the power of attorney holder did not produce the power of attorney and, hence, he could not have been examined on behalf of the complainant. The High Court further observed that the complainant who examined herself also did not say why the power of attorney was not produced. Significantly, the Appellant has not been questioned on this aspect. Not even a suggestion was made to her that she had not given any power of attorney to her husband and that it was not produced on record. 14. It was submitted by the counsel for the Appellant that the power of attorney was very much a part of the trial court's record and, in fact, it bears the PCR number as well as the CC number, which shows that it was a part of the record. A photocopy of the said power of attorney is on record at Annexure-21 to the appeal memo. A true typed copy thereof is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture was first time raised in the High Court casts a shadow of doubt on its truthfulness. We reject this submission. 17. The second submission of the Respondents is that the complaint cannot be filed by a power of attorney holder. This question is no more res integra. A Division Bench of this Court while considering a criminal appeal arising out of conviction Under Section 138 of the NI Act noticed diversion of opinion between different High Courts on the question whether the eligibility criteria prescribed by Section 142(a) of the NI Act would stand satisfied if the complaint itself is filed in the name of the payee or the holder in the due course of the cheque and/or whether the complaint has to be presented before the Court by the payee or the holder of the cheques himself. The Division Bench felt that another issue which would arise for consideration is whether the payee must examine himself in support of the complaint keeping in view the insertion of Section 145 in the NI Act (Act No. 5 of 2002). The Division Bench was of the view that the matter should be considered by a larger Bench so that there can be authoritative pronouncement of this Court on the above issues. In A.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court, nor to examine the complainant or his witness upon oath for taking the decision whether or not to issue process on the complaint Under Section 138 of the NI Act. (v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person. 19. Thus, it is clear that the complaint Under Section 138 of the NI Act can be filed through the power of attorney holder. In this case, Sudhir Gulvady is the power of attorney holder of the Appellant and he has filed the complaint on her behalf. The learned Magistrate recorded the statement of the power of attorney holder Under Section 200 of the Code on 5/3/2004 and issued summons. We have perused the said statement. It is signed by the power of attorney holder and by learned Magistrate. A.C. Narayanan states that power of attorney holder must have knowledge about the relevant transactions. There can be no dispute about the fact that in this case, the power of attorney holder being the husband of the Appellant has witnessed all transactions and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holder is recorded at the pre-summoning stage, the argument that she should have also filed a pre-summoning affidavit cannot be entertained. In this connection, we may refer to the judgment of this Court in Indian Bank Association and Ors. v. Union of India and Ors. (2014) 5 SCC 590 where this Court has given a direction to the Metropolitan Magistrate/Judicial Magistrate to adopt a pragmatic and realistic approach while issuing summons. It is also urged that the power of attorney holder should have also been examined on oath. This submission must also be rejected as apart from being devoid of substance it is clearly aimed at frustrating the prosecution. When the complainant herself has stepped in the witness box, we do not see the need for the power of attorney holder to examine himself as a witness. Law cannot be reduced to such absurdity. The purport of NI Act will be frustrated if such approach is adopted by the courts. We, therefore, reject this submission. 23. Lastly it was urged that the cheques in question were not given for any legally recoverable dues. The cheques were given as a security. The trial court has considered this plea and rejected it. This submission was als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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