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2022 (9) TMI 316 - HC - Indian LawsDishonor of Cheque - legally subsisting debt as on the date of deposit of the cheques in question or not - opportunity to cross-examine - HELD THAT - The question of examining the witness on Commission arises in the case where such a witness is disabled to attend the Court due to old age or hazardous condition of her health, not in a position to move about or the witness is incapable of attending the Court for any other reason. In such cases, the Court has to exercise its power to examine the witness to see that no such miscarriage of justice does takes place. A reading of Section 284 CrPC makes clear that where a witness could not be procured before the Court and that it is so essential to meet the ends of justice, such witness can be examined through a Commissioner. The learned Trial Court will be at liberty to examine the fact as to whether the SPA filed by the SPA holder is as per law at the appropriate stage as deemed fit by it. The SPA holder is allowed to continue with the trial, as already held by the learned Trial Court - the learned Trial Court is requested to expeditiously conclude the trial and decide the case. Petition disposed off.
Issues Involved:
1. Quashing of the impugned order dated 03.03.2022. 2. Legality of the Special Power of Attorney (SPA) holder leading evidence. 3. Examination of the complainant through a Commission under Sections 283/284 CrPC. 4. Compliance with Section 142(1)(a) NI Act regarding the written complaint by the payee or holder in due course. Issue-wise Analysis: 1. Quashing of the Impugned Order Dated 03.03.2022: The petitioner sought to quash the impugned order dated 03.03.2022, which allowed the SPA holder to prosecute the matter on behalf of the complainant. The High Court considered the submissions and found that the learned Metropolitan Magistrate (MM) had allowed the SPA holder to file his evidence on affidavit and continue the prosecution under Section 302 CrPC. However, the High Court partially set aside the impugned order to the extent of permitting the complainant to be cross-examined through the appointment of a Commission under Section 284 CrPC. 2. Legality of the Special Power of Attorney (SPA) Holder Leading Evidence: The petitioner argued that the SPA holder did not have the authority to lead evidence on behalf of the complainant and that there was no specific assertion of the SPA holder's knowledge of the transactions in the complaint. The High Court referred to the Supreme Court decision in A.C. Narayanan v. State of Maharashtra, which held that a Power of Attorney holder can depose and verify on oath if they have witnessed the transaction or possess due knowledge regarding it. The High Court allowed the SPA holder to continue with the trial but left it to the learned Trial Court to examine the legality of the SPA at the appropriate stage. 3. Examination of the Complainant through a Commission under Sections 283/284 CrPC: The complainant, suffering from severe rheumatoid arthritis and spinal scoliosis, was unable to personally attend the court. The High Court noted that in such cases, the court could appoint a Commission under Sections 283/284 CrPC to examine the witness. The High Court referred to the Madras High Court's decision in Mrs. Pankajam Ramaswamy v. Mrs. Elangovan, which allowed the examination of a witness through a Commission due to health issues. The High Court directed the learned MM to proceed in accordance with Section 284 CrPC and pass an appropriate order for the appointment of a Commission for the cross-examination of the complainant. 4. Compliance with Section 142(1)(a) NI Act: The petitioner contended that the court could not take cognizance of the offence under Section 138 NI Act without a written complaint by the payee or holder in due course. The High Court acknowledged this requirement and emphasized that the learned Trial Court should ensure compliance with Section 142(1)(a) NI Act. The High Court directed the learned Trial Court to examine the SPA's validity and the complainant's authorization to proceed with the case. Conclusion: The High Court allowed the petition partially, setting aside the impugned orders dated 03.03.2022 and 19.05.2022 to the extent of permitting the complainant to be cross-examined through the appointment of a Commission. The learned Trial Court was directed to proceed in accordance with Section 284 CrPC and examine the legality of the SPA at the appropriate stage. The trial was to be concluded expeditiously, with no unnecessary adjournments or costs imposed on either party.
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