9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (3) TMI 1382 - HC - Indian LawsDishonor of Cheque - Section 138 of the Negotiable Instruments Act, 1881 - revision petitioner has contended that filing of the petition under Section 311 Cr.P.C. is only to protract the proceedings - HELD THAT - Record of proceedings shows that revision case is pending from 2011 onwards. The petitioner has obtained stay of the proceedings in STC.No.590 of 2007 and even after this Court ordered private notice, as early as on 09.09.2011, proof has not been filed for effecting service on the respondent. Thus, it is also evident from the above that it is the petitoner, who has proteacted the proceedings in STC No.590 of 2007 on the file of the learned Judicial Magistrate No.I, Tiruppur, and not the respondent. The power of attorney can adduce evidence on the facts relating to issuance of cheque, dishonour, issuance of notice and filing of complaint, and these facts can be deposed with documents. He comes into picture, only after all the legal requirements for instituting a complaint, are met and authorised to speak about the abovesaid facts. Power of attorney is given to institute a complaint under Section 138 of the Negotiable Instruments Act, 1881, and to conduct the case. It cannot be contended that, whatever transpired between the parties is within the personal knowledge of the power of attorney. On the facts of this case, he cannot speak as to what transpired in the Crime Branch Police Station, Tiruppur, regarding payment, stated to have been made by the drawer, towards the cheque amount. The abovesaid fact can be spoken to, only by the complainant and not by the power of attorney. The revision petition is liable to be dismissed and accordingly, dismissed.
Issues Involved:
1. Examination of the petitioner/drawee of the cheque under Section 311 Cr.P.C. 2. Competence of a power of attorney holder to depose on behalf of the principal. 3. Alleged protraction of proceedings by the petitioner. Issue-wise Detailed Analysis: 1. Examination of the Petitioner/Drawee of the Cheque under Section 311 Cr.P.C.: The learned Judicial Magistrate No.I, Tiruppur, allowed the petition under Section 311 Cr.P.C. to examine the petitioner/drawee of the cheque. The complaint under Section 138 of the Negotiable Instruments Act, 1881, was initially filed in 2005 and taken on file in 2007 after rectification. The respondent sought to examine the petitioner to prove the payment of the cheque amount before the Crime Branch Police. Despite opposition from the petitioner, the court allowed the petition, reasoning that examining the petitioner would reveal the truth regarding the payment and cause no prejudice. 2. Competence of a Power of Attorney Holder to Depose on Behalf of the Principal: The court cited several judgments to address whether a power of attorney holder can depose on behalf of the principal: - Janki Vashdeo Bhojwani v. Indusind Bank Limited: The Supreme Court held that a power of attorney holder can act on behalf of the principal but cannot depose for the principal regarding acts done by the principal. - R. Arjunan v. Arunachala Gounder: It was held that a power of attorney cannot speak on behalf of the principal regarding acts committed with personal knowledge. - Shankar Finance & Investments v. State of AP: The Supreme Court clarified that a power of attorney holder can be examined if they have personal knowledge of the transactions. - Man Kaur (Dead) v. Hartar Singh Sangha: The Supreme Court summarized that a power of attorney holder cannot depose in place of the principal for acts done by the principal. - Mukesh Aggarwal v. Rajinder Kumar Pahwa: The Punjab and Haryana High Court held that a complainant must step into the witness box to prove allegations, and a power of attorney holder's testimony is limited to facts within their personal knowledge. - S. Kesari Hanuman Goud v. Anjum Jehan: The Supreme Court reiterated that a power of attorney holder cannot depose in place of the principal. - A.C. Narayanan v. State of Maharashtra: The Supreme Court clarified that a power of attorney holder can file, appear, and depose for the purpose of issuing process under Section 138 of the N.I. Act, provided they have personal knowledge of the transactions. Based on these precedents, the court concluded that the power of attorney holder in this case could not speak about what transpired at the Crime Branch Police Station regarding the payment of the cheque amount, as it was within the personal knowledge of the complainant. 3. Alleged Protraction of Proceedings by the Petitioner: The court noted that the revision case had been pending since 2011 and that the petitioner had obtained a stay of the proceedings in STC.No.590 of 2007. The petitioner had not filed proof of service on the respondent despite being ordered to do so. The court observed that it was the petitioner who had protracted the proceedings, not the respondent. Conclusion: The revision petition was dismissed, and the interim stay granted was vacated. The court directed the registry to ascertain whether the records in STC.No.590 of 2007 had been received and to retransmit them to the learned Judicial Magistrate No.1, Tiruppur, for disposal within two months.
|
