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TMI Blog2008 (1) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner began residing in her matrimonial home. According to the petitioner, soon after the marriage her husband got a bank account opened in her name in Canara Bank, Janpath Branch, New Delhi and obtained her signatures on several blank cheques stating that he wanted to utilise them for business purposes. The petitioner obliged by signing all those cheques. 2. It is averred in the petition that the petitioner's husband and other family members, including the husband and sister-in-law Smt. Shikha Batra, the complainant in this case, are carrying on their business in the name of M/s. Virtual Financial Services Pvt. Ltd. where they all are Directors. They are also Directors of M/s. Vishwas Securities Pvt. Ltd., and certain other firms. The petitioner was also one of the Directors of M/s. Vishwas Securities Pvt. Ltd., which fact was not known to the petitioner till a reply was filed by her husband to an application filed by her under section 24 of the Hindu Marriage Act, 1955. 3. According to the petitioner, there was matrimonial discord and this culminated in proceedings before the Crime Against Women Cell (CAW) where a compromise was arrived between the parties on 24th May ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncial Services Pvt. Ltd. and its Directors including her sister-in-law asking for return of the money. It is stated that after receipt of this notice, the Petitioner's husband filled up the four blank cheques which had earlier been signed by the petitioner, presented them to the bank for clearance and got them dishonoured. The said four cheques were:- (i) No. 996843 dated 16.6.2003 for a sum of Rs. 5 lakh; (ii) No. 996844 dated 16.6.2003 for Rs. 2,70,000/-; (iii) No. 996845 dated 18.6.2003 for Rs. 5 lakh; and (iv) No. 996846 dated 18.6.2003 for Rs. 2,70,000/-. 7. Claiming that the said four cheques were given by the petitioner to the respondent on account of loan allegedly given by the respondent to the petitioner and interest thereof a notice was issued on 25th June, 2003 to the petitioner by the respondent demanding payment of the principal and interest amounts. This was followed by the filing of the four criminal complaints referred to earlier, one for each dishonoured cheque, in which the impugned order dated 13th November, 2003 was passed by the MM, New Delhi summoning the petitioner for the offence under section 138, NI Act. Submissions of Counsel 8. The first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the petitioner does not dispute the fact that she had signed the cheques or that they were dishonoured on the ground of insufficient funds. This was enough to attract the offence under section 138, NI Act and the learned MM cannot be faulted for issuing summons. He further submits that the parties had regular commercial transactions independent of the matrimonial relations. He refers to certain correspondence in the form of lawyer's notice which showed that during the subsistence of the matrimonial relations the parties had entered into business dealings. He accordingly submits that the complaint cannot, in this background, be said to be mala fide. Relying on the judgments of the Supreme Court in Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque 2005) 1 SCC 122 : 2005 (25) AIC 379 (SC) : 2005 (511 ACC 188 and Daljeet Singh Chandok (SH.) v. State II (2006) CCR 43 : 128 (2006} DLT 516, he submits that disputed questions of fact, particularly in commercial transactions, cannot be gone into in a petition under section 482, Cr. P.C., and that the matter will have to be examined only at the trial. 11. As regards the complaint being filed through a Power of Attorney, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appearance of the complainant was allowed. The learned MM clearly did not apply his mind to the fact that the complaint had been filed through a power of attorney. He did not ask to see the power of attorney. In any event, the complainant through attorney was not even present. 14. In Rubu Leather Exports, the precise question that arose for consideration by the Madras High Court is set out in para 15 of the judgment which reads as under:- "Can a power of attorney agent or a person authorised in writing by the payee or the holder in due course of the cheque, be competent to make a complaint in writing under section 142 (a) of the Negotiable Instruments Act to facilitate valid cognizance being taken by the Magistrate?" After exhaustively discussing the case law including judgments of the Supreme Court, the Madras High Court answered the question in para 30 of the judgment in the affirmative in the following words (Crimes pp. 831-32):- "...a Power of Attorney Agent of the payee or the holder in due course of the cheque, will be competent to make a complaint in writing under section 142 (a) of the NI Act, to facilitate valid cognizance being taken by the Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise the order taking cognizance and issuing summons would be invalid. The learned MM before whom a complaint filed under section 142 (a), NI Act through a power of attorney is presented should, before taking cognizance; and issuing summons, satisfy himself that such a power of attorney exists, and that it is a valid document executed in accordance with law. For instance, the Magistrate, if presented with a certified copy of the power of attorney, should also require the production of its original and satisfy himself about its genuineness before proceeding to issue summons. This will be the minimum safeguard for permitting criminal complaints under the NI Act to be filed under section 142142(a), NI Act through a power of attorney for an offence under section 138 thereof. 17. In the present case, admittedly the power of attorney was not filed along with the complaint and the impugned summoning order also does not indicate that the learned MM examined such document. For this reason alone, the summoning order cannot be sustained and is liable to be set aside. Issue (a) is answered accordingly. Re: Issue (b) 18. Considering that lengthy arguments have been addressed touching on the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interference by this Court. 20. In the first place, it requires to be noticed that the complainant and the accused are related to each other. The complainant is the sister-in-law of the accused. There is no dispute about the fact that there has been a breakdown of relations between the petitioner and her husband and therefore between the petitioner and her sister-in-law, the respondent herein, as well since May 2002. Numerous cases have been filed by the parties against each other since then. It is in this background that it requires to be examined whether it is conceivable that the accused could have issued the four cheques dated 18th June, 2003 to the complainant in the manner indicated and at a time as suggested by the complainant respondent in the complaint. 21. It is apparent from a reading of the complaint that the four cheques were not issued on 18th June, 2003, It is the complainant's case that these were post-dated cheques handed over by the petitioner to the complainant sometime in June 2000. At that time, i.e. June 2000 it was hardly expected by either party that there would be bitter disputes between the parties within a period of two years. The paras 2, 3 and 4 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that she would pay a sum of Rs. 2,70,000/- as interest for a loan of Rs. 5 lakh at the end of three years. This works out to simple interest at 18% p.a for three years. The version of the complainant that the parties were in an independent business relationship is improbable and there is really no material to evidence this at all. It seems hardly probable that a business person would enter into such a transaction by accepting post-dated cheques beyond three years without even a written agreement or security as collateral and somehow expect that they would in fact be honoured when presented. 23. Given the bitter relationship between the parties this much is clear that there was no occasion for the Petitioner here to issue the four cheques on 18th June, 2003. So either they were dated as such in June 2000 itself or they were simply given as blank cheques. The former version for the reasons already explained appears to be inherently absurd and improbable. If on the other hand they were blank cheques, then the filling up of those cheques with dates of 18th June, 2003 when the signatory of the cheque was in a full-fledged litigation with the payee is certainly an unpardonable act of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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