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TMI Blog2024 (10) TMI 1455X X X X Extracts X X X X X X X X Extracts X X X X ..... months. It is alleged that post the expiry of 6 months, despite numerous requests and demands, the petitioner failed to return the said amount. It is alleged that thereafter the petitioner issued a duly signed cheque dated 04.10.2007 for a sum of Rs. 2 crores in discharge of the debt, and had also allegedly assured that the same would be honored on presentation. It is alleged that the said cheque on presentation was returned back with the remark "Insufficient funds." It is alleged that thereafter, a legal notice was sent, and upon the subsequent non-payment of the loan amount, the respondent through a power of attorney, filed a complaint under Section 138 of the NI Act. 3. It is stated that after the receipt of summons, and during the pendency of that complaint being CC No. 2675/01/07 for the alleged dishonour of the cheque issued by the petitioner for a sum of Rs. 2 crores, a compromise deed dated 15.11.2008 was allegedly executed between the petitioner and respondent through his authorized representative, whereby the petitioner had allegedly undertaken to return Rs. 3 crores to the respondent as full and final settlement. Consequently, the respondent had withdrawn the earlier co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transaction, was without application of mind. This Court, however, noted that the respondent is entitled to recover the friendly loan from the petitioner by way of filing of criminal complaint or civil suit, and that the respondent may initiate the same in accordance with law and even through valid Power of Attorney. In the light of the aforesaid, the proceedings qua the first cheque bearing no. 200451 were quashed by this Court vide order dated 22.01.2015. 7. The present proceedings stem from the alleged dishonour of the second and the third cheque bearing nos. 200452, and 200453 dated 01.03.2010 and 01.06.2010 respectively, each for a sum of Rs. 75,00,000/- allegedly advanced by the petitioner in accordance with the compromise deed dated 15.11.2008. It is the case of the complainant that the subject cheques were presented for encashment by the complainant which returned back unpaid by the bankers with the remarks "Stop by the drawer." It is alleged that thereafter legal notices were sent to the petitioner in respect of cheque no. 200452 on 21.09.2010, and cheque no. 200453 on 27.12.2010 through Speed Post/UPC/Courier and the petitioner despite the alleged service of notice, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the attorney is authorized to tender on behalf of the respondent. 12. He submitted that the compromise deed is a fabricated document, and even if the same is taken at face value still the compromise deed itself restricts the respondent from initiating fresh proceedings, and instead provides for revival of complaint no. 2675/1/2007 should there be any breach. He submitted that, in any event, the alleged compromise dated 15.11.2008 was itself entered into on the strength of the power of attorney dated 18.11.2007 which was an invalid document because the same was not duly attested by the Indian Embassy. He further submitted that the complainant failed to take permission from the Court under Section 302 (2) of the CrPC for prosecuting the case through attorney, and consequently submitted that the entire proceedings before the learned Trial Court are illegal. 13. The learned counsel for the respondent submitted that this Court while quashing the complaint case no. 21/10, qua the first cheque vide order dated 22.01.2015, did not go into the merits of the case. He submitted that on that occasion the complaint was quashed merely due to the non-existence of a valid authorization. He su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx xxxx xxxx 16. The proposition of law as set out above makes it abundantly clear that the Court should be slow to grant the relief of quashing a complaint at a pre-trial stage, when the factual controversy is in the realm of possibility particularly because of the legal presumption, as in this matter. What is also of note is that the factual defence without having to adduce any evidence need to be of an unimpeachable quality, so as to altogether disprove the allegations made in the complaint. 17. The consequences of scuttling the criminal process at a pretrial stage can be grave and irreparable. Quashing proceedings at preliminary stages will result in finality without the parties having had an opportunity to adduce evidence and the consequence then is that the proper forum i.e., the trial Court is ousted from weighing the material evidence. If this is allowed, the accused may be given an un-merited advantage in the criminal process. Also because of the legal presumption, when the cheque and the signature are not disputed by the appellant, the balance of convenience at this stage is in favour of the complainant/prosecution, as the accused will have due opportunity to adduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Apex Court observed as under: "33.1. Filing of complaint petition under Section 138 of the NI Act through power of attorney is perfectly legal and competent. 33.2. 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. 33.3. 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-of-attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case. 33.4. In the light of Section 145 of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h affidavit by making a clarification as to how he gained personal knowledge of the facts of the case. It was noted that in case the authorized representative failed to clarify or did not possess personal knowledge, he cannot depose on behalf of the complainant, and the complainant itself has to stand in the witness box and examine. 23. During the pendency of the present proceedings, the petitioner had preferred a revision petition before the learned Appellate Court, who vide order dated 21.04.2022, allowed the revision petition and set aside the direction given by the learned MM to the authorized representative of the complainant to file a fresh affidavit. The learned Appellate Court noted that the opportunity to file a 'fresh' affidavit could not have been given without affording any opportunity of hearing to the petitioner on the said aspect. The learned counsel for the petitioner contended that the said order has not been challenged by the respondent, and the same has attained finality. 24. The learned counsel for the petitioner essentially relies upon the order dated 16.09.2019 passed by the learned MM, and the order dated 21.04.2022 passed by the learned Appellate Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . When, the complainant/payee is a company, an authorised employee can represent the company. Such averment and prima facie material is sufficient for the learned Magistrate to take cognizance and issue process. If at all, there is any serious dispute with regard to the person prosecuting the complaint not being authorised or if it is to be demonstrated that the person who filed the complaint has no knowledge of the transaction and, as such that person could not have instituted and prosecuted the complaint, it would be open for the accused to dispute the position and establish the same during the course of the trial. As noted in Samrat Shipping Co. [Samrat Shipping Co. (P) Ltd. v. Dolly George, (2002) 9 SCC 455 : 2003 SCC (Cri) 1224], dismissal of a complaint at the threshold by the Magistrate on the question of authorisation, would not be justified. Similarly, we are of the view that in such circumstances entertaining a petition under Section 482 to quash the order taking cognizance by the Magistrate would be unjustified when the issue of proper authorisation and knowledge can only be an issue for trial." 26. In line with the dictum of the Hon'ble Apex Court in TRL Krosaki Refrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of the authorized representative. The same is a subject matter of trial and cannot be looked into at this stage. The learned MM after giving the accused an opportunity to be heard may to its satisfaction determine whether the attorney possessed personal knowledge of the said transaction. At the pre-summoning stage, the learned MM only ought to be satisfied whether there exists a prima facie against the petitioner. 29. The learned counsel for the petitioner has also challenged the maintainability of the complaint on the strength of the alleged compromise deed dated 15.11.2008. It is argued that the alleged compromise deed is a fabricated document. It is pointed out that the petitioner had also challenged the validity of the compromise deed dated 15.11.2008 before this Court, and the challenge was rejected vide order dated 08.05.2019. It was noted that the challenge if any to the compromise deed filed in a Court even if it is exercising jurisdiction under the NI Act and the Code of Criminal Procedure, 1973 would lie in that Court only wherein the proceedings culminated into accepting the compromise, and not before any other Court in consonance with the principle under Order XXIII ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not have been maintainable. 31. It is pertinent to mention that the petitioner has approached this Court under Section 482 of the CrPC. While it trite that the power of this Court under Section 482 of the CrPC is wide, and may be exercised to quash a complaint even at the pre-trial stage, the same ought to be exercised only if the factual defence of the petitioner is of such nature so as to disprove the allegations levelled in the complaint. 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. 32. This Court finds that the petitioner has, at best, raised questions of fact mixe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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