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TMI Blog2015 (3) TMI 1382X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - CRL.R.C.No.1233 of 2011 and M.P.No.1 of 2011 - - - Dated:- 27-3-2015 - Honourable Mr. Justice S. Manikumar For the Petitioner : Mr. J. Franklin JUDGMENT Vide order dated 11.05.2010 in Crl.M.P.No.9295 of 2009 in STC.No.590 of 2007, the learned Judicial Magistrate No.I, Tiruppur, has allowed the petition filed under Section 311 Cr.P.C. filed to examine the petitioner/drawee of the cheque. 2. Reading of the impugned order discloses that a complaint under Section 138 of the Negotiable Instruments Act, 1881, has been filed in the year 2005. It was returned with certain defects. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very well conceded to the prayer, sought for in Crl.M.P.No.9295 of 2009 in STC.No.590 of 2007 on the file of the learned Judicial Magistrate No.1, Tiruppur and by this time, the case instituted in the year 2007, would have been disposed of. Moreover, if there was no truth in the facts pleaded in Crl.M.P.No.9295 of 2009, she could have entered the witness box and deposed the truth, thereby, enabling the Court to arrive at a proper conclusion, in the trial. On the aspect as to 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, this Court deems it fit to consider few decisions, (i) In Janki Vashdeo Bhojwani and another vs. Indusind Bank Limited and others reported in 2005 (3) MLJ 109, the Supreme Court in paragraph 12, held as follows : 12. O.3, Rules 1 and 2, C.P.C., empowers the holder of power of attorney to act on behalf of the principal. In our view the word acts employed in O.3, Rules 1 and 2, C.P.C., confines only in respect of acts done by the power of attorney holder in exercise of power granted by the instrument. The t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 2010 (10) SCC 512, at Paragraph 12, the Hon'ble Supreme Court held as follows: 12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: (a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit. (b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved. (c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be appreciated to a limited extent i.e. qua the facts within his personal knowledge. It has been observed by Hon'ble Kerala High Court in case Anirudhan Vs. Phillip Jacob, 2006 (4) Criminal Court Cases 130 (Kerala) that power of attorney holder is competent to speak of facts within his exclusive personal knowledge. Similarly, it was observed by Hon'ble Madhya Pradesh High Court in the case of Mahendra Kumar Vs. Armstrong another, 2005 (3) Civil Court Cases 75 that if the attorney has appeared as a witness at the stage of taking cognizance, his testimony could be considered for the purposes of registration of the complaint/issuance of process under Section 204 Cr.P.C., but for further proceeding, examination of the complainant is a must. In another case titled as M/s G.I. Packaging Private Ltd. and another Vs. M/s S.S. Sales and another, 2006 (2) S.L.J. (Bombay) 900, the Hon'ble Bombay High Court has observed that power of attorney cannot depose on behalf of the complainant, but he can appear as a witness on behalf of the complainant and depose about the facts in his personal knowledge. It is also well settled by now that if the party, bound to appear to prove th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Whether the proceedings contemplated under Section 200 of the Code can be dispensed with in the light of Section 145 of the N.I. Act which was introduced by an amendment in the year 2002? While considering the above issues and different opinion of the Courts, the Apex Court, discussed as hereunder, 16) In order to find out the answers to the above and also to ascertain whether there is any conflict between the two decisions as pointed out in the referral order, let us consider the factual details and the ultimate dictum laid down in both the decisions. 17) In MMTC (supra), the appellant is a Government of India company. Respondent No. 1 therein is also a company and Respondent Nos. 2 and 3 were the Directors of the respondent-Company. The appellant-Company and the respondent-Company entered into a Memorandum of Understanding (MoU) dated 01.06.1994 and the same was slightly altered on 19.09.1994. Pursuant to the MoU, two cheques were issued by the respondent-Company in favour of the appellant-Company. When both the cheques were presented for payment, the same got returned with an endorsement payment stopped by drawer . Two notices were served by the appellant-Company o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m them. The power-of-attorney holder does not have personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. 13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to act on behalf of the principal. In our view the word acts employed in Order 3 Rules 1 and 2 CPC confines only to in respect of acts done by the power-of-attorney holder in exercise of power granted by the instrument. The term acts would not include deposing in place and instead of the principal. In other words, if the power-ofattorney holder has rendered some acts in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be crossexamined. This Court further held thus: 17. On the question of power of attorney, the High Courts have diver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der under CPC but it was concluded therein that a plaint by a Power of Attorney holder on behalf of the original plaintiff is maintainable provided he has personal knowledge of the transaction in question. In a way, it is an exception to a well settled position that criminal law can be put in motion by anyone [vide Vishwa Mitter (supra)] and under the Statute, one stranger to transaction in question, namely, legal heir etc., can also carry forward the pending criminal complaint or initiate the criminal action if the original complainant dies [Vide Ashwin Nanubhai Yyas v. State of Maharashtra, (1967) 1 SCR 807]. Keeping in mind various situations like inability as a result of sickness, old age or death or staying abroad of the payee or holder in due course to appear and depose before the Court in order to prove the complaint, it is permissible for the Power of Attorney holder or for the legal representative(s) to file a complaint and/or continue with the pending criminal complaint for and on behalf of payee or holder in due course. However, it is expected that such power of attorney holder or legal representative(s) should have knowledge about the transaction in question so as to ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I. Act. It is only if and where the Magistrate, after considering the complaint under Section 138 of the N.I. Act, documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness(s) is required, the Magistrate may call upon the complainant to remain present before the Court and examine the complainant and/or his witness upon oat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 26) 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: (i) Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent. (ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions. (iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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