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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 ..... rsy 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions are filed against the order dated 08.01.2019 (hereafter impugned orders ) passed by the learned Metropolitan Magistrate, NI Act, Karkardooma Courts whereby notice under Section 251 of the Code of Criminal Procedure, 1973 ( CrPC ) was framed against the petitioner in CC Nos. 47151/2016 and 47152/2016 under Section 138 of the Negotiable Instruments Act, 1881 ( NI Act ). 2. Complaint under Section 138 of the NI Act was filed by the respondent alleging that he had advanced a friendly loan for a sum of Rs. 2 crores on the assurance of the petitioner that the same would be returned after the expiry of 6 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 resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence on affidavit under Section 145 of the NI Act on behalf of the complainant, and that the complainant failed to take the permission of the Court under Section 302 (2) of the CrPC for prosecuting the case through attorney. 6. It was noted that the learned Trial Court did not appreciate how the amount of Rs. 2 crore had been given to the petitioner in cash, since the petitioner claimed that she never met the respondent. In that light, it was noted that the framing of notice and putting up the matter for complainant s evidence through attorney where the attorney had no personal knowledge about 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 dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not mention the mode in which the loan amount was advanced, or the place or time in which the alleged transaction took place. He submitted that the same does not even state that the authorized representative had witnessed the alleged transaction. 11. He submitted that the power of attorney has been executed only for the purposes of filing the complaint, and Sh. Prashant Mamgain is not privy to the details of the alleged transaction since the subject cheques are dated after the execution of the power of attorney. He submitted that even otherwise, the power of attorney does not state that 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 Emb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 SCC OnLine SC 513 had discussed the scope of interference by the High Court against the issuance of process under the NI Act as under: 8. The issue to be answered here is whether summons and trial notice should have been quashed on the basis of factual defences. The corollary therefrom is what should be the responsibility of the quashing Court and whether it must weigh the evidence presented by the parties, at a pre-trial stage. xxxx 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cannot depose for the principal for the acts done by the principal and not him. It is argued that the power of attorney does not mention that the attorney has personal knowledge of the case, and that the pre-summoning evidence of the attorney does not state the attorney has himself witnessed the alleged transaction or not. 19. It is pertinent to mention that the Hon ble Apex Court in the case of A.C. Narayanan (supra) clarified the position with respect to the power of the holder of the power of attorney to pursue a complaint under Section 138 of the NI Act. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge about the transaction and the facts of the case. 22. The petitioner has further relied upon the order of the learned MM dated 16.09.2019 where the application filed under Section 209 of the IPC read with Section 340 of the CrPC filed by the petitioner was disposed of. It was argued that the learned MM also noted that merely mentioning a single line that the authorized representative had personal knowledge of the case does not conclude that the person possessed personal knowledge. The authorized representative was consequently directed to file a fresh 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.C. Narayanan [A.C. Narayanan v. State of Maharashtra, (2014) 11 SCC 790 : (2014) 4 SCC (Civ) 343] cannot be understood to mean that the assertion should be in any particular manner, much less only in the manner understood by the accused in the case. All that is necessary is to demonstrate before the learned Magistrate that the complaint filed is in the name of the payee and if the person who is prosecuting the complaint is different from the payee, the authorisation therefor and that the contents of the complaint are within his knowledge. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the GPA placed on record by the authorized representative is executed by the respondent in favour of the authorized representative. It was noted that the GPA revealed that the authorized representative has been duly authorized by the respondent to file any case against the accused, and the same was also duly attested by the Indian Embassy on 07.09.2010. In that light, it was rightly noted that had the GPA not been attested by the Indian Embassy or the same had been executed and attested after the filing of the complaints, the same 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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