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TMI Blog2015 (11) TMI 1853X X X X Extracts X X X X X X X X Extracts X X X X ..... ed while questioning him under Section 313 CrPC. Accused examined DW1 and marked Exts. D1 to D3 in support of his defence. Learned Magistrate convicted the accused and sentenced to imprisonment for six months and fine of Rs. 2500/- with a default sentence for one month. The accused was directed to pay sum of Rs. 5,49,283/- to the complainant as compensation, in default imprisonment for two months. Against that, he filed Criminal Appeal No. 75/2000 before II Additional Sessions Judge (Ad hoc), Fast Track Court-I, where the sentence was modified. Being aggrieved by that, the accused preferred this revision petition. 2. The main contention advanced by the revision petitioner is that the power of attorney holder is one Sreekumar and he delegated authorisation to one Jose by another power of attorney. This was done without proper authorisation to represent the Company, therefore the institution of the complaint itself is invalid. The second ground is that the Appellate Court received additional evidence without giving opportunity to the revision petitioner which is illegal. These illegalities were not considered by both Courts. 3. In reply to the contention, the 2nd respondent contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven to him/her. Whatever decisions are taken regarding running the affairs of the company, they are taken by the Board of Directors. The Directors of companies have been variously described as agents, trustees or representatives, but one thing is certain that the Directors action behalf of a company in a fiduciary capacity and their acts and deeds have to be exercised for the benefit of the company. They are agents of the company to the extent they have been authorized to perform certain acts on behalf of the company. In a limited sense they are also trustees for the shareholders of the company." Here, the complainant company is a juristic person, it can act through its directors and the company can delegate its function to a power of attorney holder. If an individual director acts on behalf of the company and the company by a resolution has to specify such power, and if such delegation by way of power of attorney is given, he has to explain the extent of the power given to the power of attorney holder in the power of attorney. 5. Normally Court will not non-suit a person on the ground of technicalities. However, the question of competency to institute a prosecution under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NI Act through power of attorney is perfectly legal and competent. (ii) 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. (iii) 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. (iv) In the light of Section 145 of NI 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 NI 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 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 ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pal. If the power of attorney holder has rendered some 'acts' in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal is entitled to be cross-examined." In short filing complaint by the power of attorney is perfectly legal. 8. The challenge here is whether the power of attorney holder has any power to sub-delegate the power to another person, without specific authorisation in the power of attorney. As per the terms of the general power of attorney, if the power to further delegate is mentioned in the general power of attorney, then such delegation is valid. If the authority to delegate the function to the power of attorney is silent about sub-delegation, then such sub-delegation must be inconsistent with the terms of the power of attorney. In this case, if the authorisation was delegated by virtue of Exts. P1 and P2 by the Company, they can act upon the terms of the general power of attorney. The power of attorney holder can verify and depose before Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power to take further evidence or direct it to be taken by Sessions Judge or a Magistrate. If the Appellate Court is the High Court it can direct to the Court of Sessions or to the Magistrate to take such evidence, if it thinks additional evidence is necessary for disposing the case, and the discretion has to exercise on juridical principle alone. Section 391 CrPC reads as follows: "Appellate Court may take further evidence or direct it to be taken.--(1) in dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aimed, which was opened by the Appellate Court and admitted its content in evidence without giving any opportunity to the revision petitioner, which caused prejudice to the accused. In short, filing of a complaint through power of attorney for offence under Section 138 of NI Act is perfectly valid and the power of attorney can depose and verify on oath before the Court in order to prove the contents of the complaint. If the power of attorney holder had witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions, he has to make specific assertion in the complaint about his knowledge. If the power of attorney holder has no direct knowledge about the transactions, he cannot be examined as a witness to prove the transaction in a case. The Courts below failed to verify the nature of delegation and sub-delegation of power in Exts. P1, P2 power of attorney. The nature of sub-delegation was not answered by the Courts below. Moreover, additional evidence has been admitted without giving opportunity to the revision petitioner. Hence, these infirmities warrant me to invoke the revisional jurisdiction in this case. In the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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