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2015 (3) TMI 1407 - HC - Indian LawsDishonor of Cheque - whether a power of attorney can speak about a fact which is in the personal knowledge of the petitioner the drawee of the cheque stated to be received the cheque amount in the police station? - 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 petitioner who has protected 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 dismissed.
Issues Involved:
1. Examination of the petitioner/drawee of the cheque under Section 311 Cr.P.C. 2. Validity of a power of attorney holder deposing on behalf of the principal in a complaint under Section 138 of the Negotiable Instruments Act, 1881. 3. Allegations of protracting proceedings. 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 a 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 later taken on file in 2007. The respondent contended that after the complaint was filed and returned, the police arrested the petitioner, who then paid the cheque amount. Despite this, a private complaint was filed. The court allowed the petition to examine the petitioner to determine the truth regarding the payment of the cheque amount before the Crime Branch Police, stating that no prejudice would be caused by examining her. 2. Validity of a Power of Attorney Holder Deposing on Behalf of the Principal: The court referred to several precedents to determine whether a power of attorney holder can depose on behalf of the principal. Key judgments cited include: - Janki Vashdeo Bhojwani v. Indusind Bank Limited: The Supreme Court held that a power of attorney holder cannot depose for the principal regarding acts done by the principal and not by the attorney holder. - Shankar Finance & Investments v. State of AP: The Supreme Court clarified that an attorney holder who is in charge of the business and aware of the transactions can be examined as the complainant. - Man Kaur v. Hartar Singh Sangha: The Supreme Court summarized that an attorney holder cannot give evidence in place of the principal for acts done by the principal. - A.C. Narayanan v. State of Maharashtra: The Supreme Court held that a power of attorney holder can file a complaint and depose if they have personal knowledge of the transactions. The court concluded that while a power of attorney holder can adduce evidence on the facts related to the issuance of the cheque, dishonor, issuance of notice, and filing of the complaint, they cannot speak on matters requiring the personal knowledge of the principal, such as what transpired in the Crime Branch Police Station regarding payment. 3. Allegations of Protracting Proceedings: The petitioner contended that the filing of the petition under Section 311 Cr.P.C. was to protract the proceedings. However, the court noted that the petitioner had obtained a stay of the proceedings and had not filed proof of service on the respondent, indicating that it was the petitioner who was prolonging the proceedings. The court emphasized that if the petitioner intended a speedy disposal, she could have conceded to the prayer in the petition. Conclusion: The court dismissed the revision petition, vacated the interim stay, and directed the disposal of STC. No. 590 of 2007 within two months. The court reiterated that a power of attorney holder could not depose on matters requiring the personal knowledge of the principal, and only the complainant could speak to what transpired regarding the payment at the police station.
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