9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (10) TMI 1455 - HC - Indian LawsDishonour of Cheque - Insufficient funds - validity of the complaint u/s 138 of the NI Act, 1881, filed through a Power of Attorney - proceedings initiated on the basis of a compromise deed - HELD THAT - It is relevant to note that this Court can quash complaints under the NI Act at the pre-trial stage in the exercise of its inherent jurisdiction under Section 482 of the CrPC if such unimpeachable material is brought forth by the accused persons which indicates that they were not concerned with the issuance of the cheques or that no offence is made out from the admitted facts. The Hon ble Apex Court in the case of Rathish Babu Unnikrishnan v. State (NCT of Delhi) 2022 (4) TMI 1434 - SUPREME COURT had discussed the scope of interference by the High Court against the issuance of process under the NI Act and it was held that 'to non-suit the complainant, at the stage of the summoning order, when the factual controversy is yet to be canvassed and considered by the trial court will not in our opinion be judicious. Based upon a prima facie impression, an element of criminality cannot entirely be ruled out here subject to the determination by the trial Court. Therefore, when the proceedings are at a nascent stage, scuttling of the criminal process is not merited.' In line with the dictum of the Hon ble Apex Court in Rathish Babu Unnikrishnan v. State (NCT of Delhi) 2022 (4) TMI 1434 - SUPREME COURT , thus, while exercising the power under Section 482 of the CrPC to quash a complaint at the pre-trial stage, it is pertinent for this Court to examine whether the factual defence is of such impeachable nature that the entire allegations made in the complaint is disproved. From a perusal of the complaint, it transpires that the complaint mentions that the authorized representative is fully competent to file and sign the complaint and is competent to file evidence by way of affidavit, and do all other acts to pursue the case. The complaint also mentions that attorney possessed personal knowledge of the case. In the present case from a perusal of the complaint and the pre-summoning evidence, it is evident that the same contains an averment that the authorized representative does possess personal knowledge of the alleged transaction. The degree of knowledge or whether the authorized representative even possess any personal knowledge with regard to the alleged transaction as alleged by the petitioner is a subject matter of trial and cannot be looked into at this stage to quash the complaint and framing of notice under Section 251 of the CrPC. Merely because the complaint, or the pre-summoning evidence by way of affidavit does not detail what knowledge or the extent of knowledge possessed by the authorized representative, this Court does not deem it expedient to quash the complaint and notice under Section 251 of the CrPC, especially on the ground of extent of knowledge of the authorized representative - The challenge to the validity of the compromise deed would be decided after the evidence is lead by the parties and cannot be commented upon at this stage and this Court does not deem it apposite to comment or consequently quash the present petition on such ground. In the present case, while the petitioner has raised questions regarding the incapability of the attorney to file the complaint, or lead pre-summoning evidence on the strength of the Power of Attorney, or the maintainability of the complaint on the basis of a fabricated compromise deed, the same is not impeachable in nature and does not disprove the allegations levelled against the petitioner in the complaint. Such questions can well be determined by the learned MM during the course of trial. The learned MM would arrive at a decision after considering the allegations, and counter allegations raised by the parties, and considering the evidence on record. This Court finds that the petitioner has, at best, raised questions of fact mixed with law which cannot be examined by this Court while exercising jurisdiction under Section 482 of the CrPC since it is expedient that the same be left to be adjudicated at the stage of trial when the parties have led their evidence. Petition dismissed.
Issues Involved:
1. Validity of the complaint under Section 138 of the Negotiable Instruments Act, 1881, filed through a Power of Attorney. 2. Legality of the proceedings initiated on the basis of a compromise deed. 3. The competence of the authorized representative to depose and verify on oath. 4. The maintainability of the complaint in light of previous quashing of proceedings related to a similar issue. Issue-wise Detailed Analysis: 1. Validity of the Complaint Filed Through Power of Attorney: The court examined whether the complaint under Section 138 of the NI Act could be filed and pursued by a Power of Attorney holder. The petitioner argued that the authorized representative lacked personal knowledge of the transaction and thus could not tender an affidavit by way of evidence. The court referred to the Supreme Court's ruling in A.C. Narayanan v. State of Maharashtra, which clarified that a Power of Attorney holder can file a complaint and depose if they have witnessed the transaction or possess due knowledge of it. The court found that the complaint and pre-summoning evidence contained an assertion that the authorized representative possessed personal knowledge of the transaction, which was sufficient at the pre-trial stage. The court emphasized that any challenge to the representative's knowledge should be addressed during the trial. 2. Legality of Proceedings Based on a Compromise Deed: The petitioner contended that the compromise deed was fabricated and should invalidate the proceedings. The court noted that the challenge to the compromise deed's validity was rejected in a previous order dated 08.05.2019, which stated that such a challenge should be addressed in the court where the compromise was accepted. The court held that the validity of the compromise deed should be determined after evidence is presented during the trial, not at the pre-trial stage. 3. Competence of the Authorized Representative to Depose and Verify on Oath: The petitioner argued that the authorized representative could not depose as they lacked personal knowledge of the transaction. The court referred to the Supreme Court's decision in TRL Krosaki Refractories Ltd. v. SMS Asia (P) Ltd, which stated that the authorized representative must demonstrate that they have knowledge of the complaint's contents. The court found that the complaint and affidavit indicated the representative's personal knowledge, and any dispute over this should be resolved during the trial. 4. Maintainability of the Complaint in Light of Previous Quashing: The petitioner highlighted that proceedings related to the first cheque were previously quashed due to an unauthenticated Power of Attorney. The court noted that the current complaint was supported by a General Power of Attorney duly attested by the Indian Embassy, addressing the previous issue of authentication. The court held that the present complaint was maintainable as the procedural defect had been rectified. Conclusion: The court dismissed the petitions, emphasizing that the factual disputes raised by the petitioner were not of such an impeachable nature to warrant quashing the complaint at the pre-trial stage. The court reiterated that the issues raised should be adjudicated during the trial, where the parties could present their evidence and arguments. The court exercised its discretion under Section 482 of the CrPC, deciding not to intervene at this preliminary stage.
|
