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TMI Blog2019 (6) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... ng evidence of the complainant. Be taken on record. I have gone through the material available on record. I found sufficient material on record to summon the accused for the offence U/S 138 of the Negotiable Instruments Act. 1 hereby take the cognizance of the offence and summon the accused of trail. Issue summons to the accused on the filing of PF/RC/Speed Post/Courier for 03.08.2006." (ii) Order dated 02.12.2005 in CC No.2175/2001:- "I have perused the file and documents placed on record. From document placed on record and taken into consideration the affidavit, a prima facie case under Section 138 N.I. Act is made out against the accused be summoned on PF/ RC and by courier DTDC. Put up for report on 23.02.2006." (iii) Order dated 27.04.2006 in CC No.2176/2001:- "Affidavit of pre-summoning evidence has already been filed on record on behalf of the complainant. I have gone through the contents of the complaint, affidavit in pre-summoning evidence and documents in support of the complaint. After going through all the material available on record, I found sufficient material on record to take cognizance of the offence under Section 138 of the Negotiable Instruments Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Court vide judgment dated 23.12.2011 has already held that the complainant i.e. the respondent is not a 'wakf' and cannot be described as a 'wakf' and thus the complaint filed by the complainant alleging itself to be a 'wakf' is not maintainable and liable to be dismissed at the outset. Inter alia the petitioner has submitted that the person who had executed the power of attorney in favour of Javed Akhtar has already expired and thus the power of attorney is non est in the eyes of law and does not confer any right, title to institute the proceedings and that the proceedings cannot be continued on the said basis. It has also been submitted on behalf of the petitioner that the learned trial Court has proceeded to issue the summons without even recording the statement in pre-summoning evidence and thus the summoning orders could not have been issued before recording of the statement in pre-summoning evidence and that the liberties and reputation of the petitioner could not have been damaged by the impugned summoning orders in violation of the law. 5. The respondent has put in appearance and contested the petition. Para 1 in each of the three complaints is identical and reads t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used. vi. That as the accused was one of the distributor of the complainant, running account of the accused was maintained at the end of the complainant. vii. That the accused was always very negligent and casual in clearing the payment in respect of the goods respect of the goods received by him from the complainant at various intervals of time, however, the complainant keeping in view the long association with the accused kept on supplying goods to the accused on credit on the assurances of the accused to clear the payment at a later stage. viii. That, however, the accused in gross violation of trust, placed in him by the complainant, continuously defaulted in making the payment to the complainant resultantly an amount of Rs. 7,72,84,407.24/- (Rs. Seven crores seventy two lacs eighty four thousand four hundred seven rupees only) stood outstanding against the accused in the account of the complainant lastly on November, 2000. ix. That constrained by the above acts of the accused, the complainant were forced to discontinue the supply of its products to the accused and, thereafter, the complainant repeatedly wrote various letters to the accused to come forward and settle the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he verdict of the Hon'ble Supreme Court in A.C. Narayanan (supra), it has been held vide paras 29 to 33.5 to the effect: "29) From a conjoint reading of Sections 138, 142 and 145 of the N.I. Act as well as Section 200 of the Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the Court and to examine him upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. For the purpose of issuing process under Section 200 of the Code, it is open to the Magistrate to rely upon the verification in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to whether a person authorized by a Company or Statute or Institution can delegate powers to their subordinate/others for filing a criminal complaint? The issue raised is in reference to validity of sub-delegation of functions of the power of attorney. We have already clarified to the extent that the attorney holder can sign and file a complaint on behalf of the complainant-payee. However, whether the power of attorney holder will have the power to further delegate the functions to another person will completely depend on the terms of the general power of attorney. As a result, the authority to sub- delegate the functions must be explicitly mentioned in the general power of attorney. Otherwise, the sub-delegation will be inconsistent with the general power of attorney and thereby will be invalid in law. Nevertheless, the general power of attorney itself can be cancelled and be given to another person. 33) While holding that there is no serious conflict between the decisions in MMTC (supra) and Janki Vashdeo Bhojwani (supra), we clarify the position and answer the questions in the following manner: 33.1 Filing of complaint petition under Section 138 of N.I Act through power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Negotiable Instruments Act, 1881 and it is only if and where the Magistrate, after considering the complaint under Section 138 of the Negotiable Instruments Act, 1881 and documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that the examination of the complainant or his witness is required, the Magistrate may call upon the complainant to remain present before the Court and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the Negotiable Instrument Act, 1881. 11. As observed elsewhere hereinabove, no affidavit of the complainant nor of the General Power of Attorney holder had been annexed to the complaints, which form subject matter of the three petitions. However, the affidavit in pre-summoning evidence has been filed in each of them. The impugned orders which have been reproduced elsewhere hereinabove have apparently taken the said pre-summoning evidence into account apart from the other documents on the record and the process has thus been directed to be issued. Substantially, thus, the implicit conditions of the affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence." 13. In the instant case, the affidavits in CC No.2174/2001 CC No.2175/2001 & CC No.2176/2001 in pre-summoning evidence of Mr. Javed Akhtar are to the effect: (1) Affidavit in CC No.2174/2001:- i. I state that the complainant is a Wakf Constituted under a Wakf Deed dt: 28.8.1948 having ifs registered office a. the address aforementioned the copy of wakf deed dt: 28.8.1948 is exhibited as Ex CW1/1. ii. I state that I was the, law officer of the complainant in 1995 and am presently Deputy Manger (Law) and as such duly authorised Power of Attorney holder of the complainant authorised vide Power of Attorney dated 15.5.1995 issued in my favour by the Chief Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meetings wherein the accused expressed his financial disability to clear the huge outstanding in one go and it was decided in July, 2004 that the accused will start making the payment of Rs. 20 lacs per month w.e.f. January. 2005 by way of two fortnightly cheques of approximately Rs. 10 lacs each and in this manner, the accused will clear the payment of Rs. 70 lacs within three months and once the accused shows his bona fide in clearing the part payment further time to clear the balance payment of Rs. 7 crores would be decided mutually between complainant and the accused. xii. I state that in accordance with the above understandings, the accused duly rendered to the complainant seven cheques of approximately Rs. 10 lacs each duly filled up by the accused in October, 2004 itself. xiii. I state that these cheques, so issued by the accused, were to be deposited for encashment w.e.f. 15.1,2005 and the complainant duly believing above understandings arrived a, with the accused deposited die firs, cheque of Rs. 10,00,005/. bearing No. 365829 with its bankers Bank of India, Hamdard Dawakhana Branch, Hamdard Marg, Delhi-6 on, 15.1.2005 for encashment. However, to the disappointment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state that the said cheques were dishonoured vide returning memo dated 17.1.2005 and 2.2.20005 respectively and a collective demand notice dated 14th February, 2005 was issued within 30 days of the knowledge of dishonour of cheques. xx. I state that the Hon'ble Court has the jurisdiction to entertain the present complaint as the complainant and its bankers are located within the jurisdiction of the Hon'ble Court. I state that the accused may kindly be summoned and prosecuted in accordance with the law for the offence committed by him. Verification: Verified at Delhi on this 28th day of June 2005 that the contents of the above affidavit of mine are true and correct and based on the records available in the office of the complainant as also on the basis of the interaction between the complainant and the accused and nothing material has been concealed from the above affidavit of mine." (2) Affidavit in CC No.2175/2001:- i. I state that the complainant is a Wakf Constituted under a Wakf Deed dt: 28.8.1948 having ifs registered office a. the address aforementioned the copy of wakf deed dt: 28.8.1948 is exhibited as Ex CW1/1. ii. I state that I was the, law officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to come forward and settle the accounts. xi. I state that, however, despite the numerous letters of complainant, the accused kept on delaying the payment on one pretext or the other and after repeated consultations and meetings wherein the accused expressed his financial disability to clear the huge outstanding in one go and it was decided in Wy, 2004 that the accused will start making the payment of Rs. 20 lacs per month w.e.f. January. 2005 by way of two fortnightly cheques of approximately Rs. 10 lacs each and in this manner, the accused will clear the payment of Rs. 70 lacs within three months and once the accused shows his bona fide in clearing the part payment further time to clear the balance payment of Rs. 7 crores would be decided mutually between complainant and the accused. xii. I state that in accordance with the above understandings, the accused duly rendered to the complainant seven cheques of approximately Rs. 10 lacs each duly filled up by the accused in October, 2004 itself. xiii. I state that these cheques, so issued by the accused, were to be deposited for encashment w.e.f. 15.1.2005 and the complainant duly believing above understandings arrived at with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Court has the jurisdiction to entertain the present complaint as the complainant and its bankers are located within the jurisdiction of the Hon'ble Court. I state that the accused may kindly be summoned and prosecuted in accordance with the law for the offence committed by him. Verification: Verified at Delhi on this 28th day of June 2005 that the contents of the above affidavit of mine are true and correct and based on the records available in the office of the complainant as also on the basis of the interaction between the complainant and the accused and nothing material has been concealed from the above affidavit of mine" (3) Affidavit in CC No.2176/2001:- i. I state that the complainant is a Wakf Constituted under a Wakf Deed dt: 28.8.48 and registered as a Trust by declaration of Trust dated 6.9.1950, having it's registered office at the address aforementioned. The copy of Wakf Deed dt: 28.8.48 and copy of the declaration of Trust dated 6.9.1950 are exhibited as Ex.CW 1/1 and Ex.CWl/2 respectively. ii. I state that I was the, law officer of the complainant in 1995 and am presently Deputy Manger (Law) and as such duly authorised Power of Att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant, the accused kept on delaying the payment on one pretext or the other and after repeated consultations and meetings wherein the accused expressed his financial disability to clear the huge outstanding in one go and it was decided in Wy, 2004 that the accused will start making the payment of Rs. 20 lacs per month w.e.f. January. 2005 by way of two fortnightly cheques of approximately Rs. 10 lacs each and in this manner, the accused will clear the payment of Rs. 70 lacs within three months and once the accused shows his bona fide in clearing the part payment further time to clear the balance payment of Rs. 7 crores would be decided mutually between complainant and the accused. xii. I state that in accordance with the above understandings, the accused duly rendered to the complainant seven cheques of approximately Rs. 10 lacs each duly filled up by the accused in October, 2004 itself. xiii. I state that these cheques, so issued by the accused, were to be deposited for encashment w.e.f. 15.1.2005 and the complainant duly believing above understandings arrived at with the accused deposited the third cheque of Rs. 10,00,007/- bearing No. 365831 with its bankers Bank of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused is Exhibited as Ex. CW 1/15. xxii. I state that the legal notice was dispatched within a stipulated time as per the provisions of law. xxiii. I state that the accused has failed to discharge his liability despite receiving the notice of demand. xxiv. I state that the said cheques were dishonoured vide returning memo dated 30.4.2005, 4.4.2005 and 18.4.2005 respectively and a collective demand notice dated 3.5.2005 was issued within 30 days of the knowledge of dishonour of cheques. xxv. I state that the Hon'ble Court has the jurisdiction to entertain the present complaint as the complainant and its bankers are located within the jurisdiction of the Hon'ble Court. I state that the accused may kindly be summoned and prosecuted in accordance with the law for the offence committed by him. Verification: Verified at Delhi on this 3rd day of September, 2005 that the contents of the above affidavit of mine are true and correct and based on the records available in the office of the complainant as also on the basis of the interaction between the complainant and the accused and nothing material has been concealed from the above affidavit of mine" The same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct or restrict in any manner any of the rights, powers and authority conferred on the Wakif Mutawalli and Chief Mutawalli. They shall not be liable for any loss or damage suffered by or caused to the Wakf as a result of any act of commission or omission during the course of the reasonable exercise by them of any of the discretionary power in regard to the management of the affairs of the Wakf. Without prejudice to the generality of the powers and rights vested in them under clause 2 and 2-A, the following powers shall be deemed to be included in the full rights, powers and authority conferred; (a) For carrying out the multifarious affairs of the Wakf, to appoint servants, assistants, agents, brokers, factors, bankers and auditors on such terms as to salary, commission or remuneration or otherwise as the Wakif Mutawalli. shall deem fit and proper or to dismiss or remove from office any person so employed or any person who may have been so employed before the creation of the Wakf, to add to or deduct from the salary, commission, remuneration or consideration payable to any such person or to reward or remunerate any person for the services rendered to the Wakf or to compensate and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or others or to receive payments of any / refund vouchers received from Government or an other Department, person or body on the strength of his signatures or to delegate all or some of the powers given herein to anyone trusted by him so that he may exercise the same for and on his behalf. (e) To pledge or mortgage any of the movable or immovable properties belonging to the Wakf as security against any loans required for the purposes of the Wakf or to give on lease or hire any of the immovable or movable property or any part of it for such period and on such terms as he may deem fit and proper. (f) To transfer, sell, pledge, hypothecate or incumber in any manner according to need and for purposes of the Wakf, any of the valuable securities or shares of limited companies acquired with the Wakf-funds and to sign and execute the papers necessary for such purposes. (g) To acquire by purchase, hire-purchase, exchange, gift, bequest, mortgage or otherwise any movable and immovable property for the purposes of the Wakf business from the Wekf funds. (h) To present for registration all kinds of documents, to admit execution for purposes of registration and to receive consideration f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be Mutawalli, by the chief Mutawalli. The Wakif Mutawalli shall also have a right to appoint or nominate someone else to be a Mutawalli of this Wakf after his death notwithstanding the conditions to the contrary of Mutawalliship contained herein." 18. It is thus indicated that Rabea Begum, Executant No.3 died on 5th October, 1949 and Hakim Mohammad Said, Executant No.2 was declared an evacuee and his share was taken possession of by the Custodian of Evacuee Property and thus Mr. Hakim Abdul Hameed, Executant No.1 became the sole surviving Wakif-Mutawalli and all rights, powers and duties of Wakif Mutawalli conferred by the Deed thus vested in him and it was mentioned thereby that he would be construed to mean the sole surviving Wakif-Mutawalli in relation to the all rights, powers and duties provided for the Wakif Mutawallis in the Wakf Deed as it has been submitted through the submissions made on behalf of the petitioner and which have not been refuted on behalf of the respondent that even the said Shri Hakim Abdul Hameed who executed the Power of Attorney in favour of Javed Akhtar has since expired, there is nothing that has been put forth on the record by the respondent to ind ..... 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