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TMI Blog2015 (11) TMI 1853X X X X Extracts X X X X X X X X Extracts X X X X ..... he has no power to delegate such power to another person without proper authorisation. The evidence of PW 1 shows that the cheque was dishonoured for the reason of funds insufficient and he demanded the amount by giving a notice in writing. Ext. P1 is the power of attorney given by Apollo tyres to one Sreekumar who filed the complaint. Ext. P2 is the power of attorney executed by Sreekumar in favour of one Jose. But, these two persons were not examined as witnesses in this case - no documents were produced in the Trial Court to show that Joseph and Jose J. P. are one and the same person and not examined the validity of the power delegated by Sreekumar. The power of attorney holder can depose and verify on oath before Court in order to prove the content of the complaint. However, he has to prove the nature of delegation in the power of attorney. The object of taking additional evidence under Section 391 of the Code is to ensure that justice is done between the prosecution and the accused. Additional evidence cannot be permitted at the appellate stage as of right and Appellate Court has to exercise its discretion on sound judicial principle alone. It is not an arbitrary discr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5/2000 before II Additional Sessions Judge (Ad hoc), Fast Track Court-I, where the sentence was modified. Being aggrieved by that, the accused preferred this revision petition. 2. The main contention advanced by the revision petitioner is that the power of attorney holder is one Sreekumar and he delegated authorisation to one Jose by another power of attorney. This was done without proper authorisation to represent the Company, therefore the institution of the complaint itself is invalid. The second ground is that the Appellate Court received additional evidence without giving opportunity to the revision petitioner which is illegal. These illegalities were not considered by both Courts. 3. In reply to the contention, the 2nd respondent contended that as per Ext. P1, Sreekumar, Vice Chairman of the Company was authorised to represent the Company, the resolution was also not filed along with the power of attorney. As per Ext. P2, one Jose J. P. was authorised to represent the Company but that resolution was not produced before Court. Subsequently, on 24/06/1996 by virtue of Ext. P1, Sreekumar delegated his authorisation to one Navaneethan, however, that authorisation was not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he extent they have been authorized to perform certain acts on behalf of the company. In a limited sense they are also trustees for the shareholders of the company. Here, the complainant company is a juristic person, it can act through its directors and the company can delegate its function to a power of attorney holder. If an individual director acts on behalf of the company and the company by a resolution has to specify such power, and if such delegation by way of power of attorney is given, he has to explain the extent of the power given to the power of attorney holder in the power of attorney. 5. Normally Court will not non-suit a person on the ground of technicalities. However, the question of competency to institute a prosecution under Section 138 of the NI Act on behalf of the company is not a technical matter, but it has to satisfy the condition under Section 142(a) of the Act. The complainant here is a Company incorporated under the Companies Act and the complaint was filed by its power of attorney holder. Subsequently, the power of attorney holder delegated the power given to him to another person and the resolution from the company was not produced in the Trial Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case. (iv) In the light of Section 145 of NI Act, 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 NI Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the NI Act. (v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person. 6. The general law is that anyone can set the criminal law in motion by filing a complaint before a Magistrate entitled to take cognizance under Section 190 of the Code. If a Statute prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of attorney is perfectly legal. 8. The challenge here is whether the power of attorney holder has any power to sub-delegate the power to another person, without specific authorisation in the power of attorney. As per the terms of the general power of attorney, if the power to further delegate is mentioned in the general power of attorney, then such delegation is valid. If the authority to delegate the function to the power of attorney is silent about sub-delegation, then such sub-delegation must be inconsistent with the terms of the power of attorney. In this case, if the authorisation was delegated by virtue of Exts. P1 and P2 by the Company, they can act upon the terms of the general power of attorney. The power of attorney holder can verify and depose before Court to prove the averment in the complaint. If he has witnessed the transaction as an agent of the payee or holder in due course, and has direct knowledge about the transaction the complainant has to make specific assertion about it in the complaint. But the other hand if he has no knowledge about the transaction, he cannot be examined as a witness to prove the transaction. 9. According to Section 138 of the NI Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take further evidence or direct it to be taken.--(1) in dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry. The cheque was dishonoured for the reason of funds insufficient and the complainant demanded the money by giving a notice in writing. Ext. P6 is the unclaimed demand notice issued by the complainant. A perusal of above document shows that Ext. P6 notice was not opened in the Trial Court and its content was not challenged in the Trial Court, but the Appellate Court without giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaint. If the power of attorney holder had witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions, he has to make specific assertion in the complaint about his knowledge. If the power of attorney holder has no direct knowledge about the transactions, he cannot be examined as a witness to prove the transaction in a case. The Courts below failed to verify the nature of delegation and sub-delegation of power in Exts. P1, P2 power of attorney. The nature of sub-delegation was not answered by the Courts below. Moreover, additional evidence has been admitted without giving opportunity to the revision petitioner. Hence, these infirmities warrant me to invoke the revisional jurisdiction in this case. In the result, the conviction and sentence passed by the Judicial First Class Magistrate under Section 138 of the NI Act are set aside. The matter is remitted to the Trial Court for fresh consideration. Both parties are at liberty to adduce fresh evidence and the learned Judicial First Class Magistrate, Irinjalakuda is directed to dispose of the matter as per law at the earliest. - - TaxTMI - TMITax - In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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