THE HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION Nos.2837, 2849 & 3274 OF 2019
COMMON ORDER:
These Criminal Petitions are filed to quash the
proceedings in CC.Nos.489 of 2018, 435 of 2018 and 434 of
2018, pending on the file of XV Special Magistrate Court,
Erramanzil, Hyderabad. In all these criminal petitions, since
the parties and issues are also common, there are being heard
together and disposed of vide this common order.
2. Heard S.M.Subhani, learned counsel for the
petitioners and Sri V.Ramchander Goud, learned counsel
appearing for Respondent No.2.
3. Petitioners herein are accused in the above said CCs. The offence alleged against the petitioners herein is under Section 138 of Negotiable Instruments Act, 1881 (for short 'the Act').
4. Sri S.M.Subhani, learned counsel for the petitioners would submit that the 2nd respondent has filed the complaints through his GPA holder Mr.B.Pradeep Kumar, S/o.B.Ramaiah. The complaints were filed on 14.05.2015 and the alleged General Power of Attorney is dt.29.05.2015 executed at Washington DC, USA. Therefore, as on date of filing of the complaints under Section 200 Cr.P.C for the offences under Section 138 of the Act, in the Court below, the Power of Attorney holder is not having authority or power to represent the complainanat. Even then, the Court below has entertained 2 the said complaints and numbered them. He has referred the copy of the complaints filed under Section 200 Cr.P.C and also copy of the Power of Attorney and by referring the same, learned counsel for the petitioners would submit that the complaints were filed on 14.05.2015 whereas the Power of Attorney is dt.29.05.2015. Therefore, the Court below has grossly erred in entertaining the complaints taking cognizance of offence under Section 138 of the Act against the petitioners herein. According to him, the Court below instead of returning the complaints on the ground that as on date of filing of the complaint, the Power of Attorney holder is not having Power of Attorney at all, the learned Magistrate has entertained the complaint, taken cognizance against the petitioners herein for the offence under Section 138 of the Act. Thus, the Court below has committed grave irregularity. Taking of cognizance itself is in violation of the procedure laid down under law. He would further submit that there is no legally enforceable debt by the petitioners herein. The 2nd respondent has obtained the cheques in dispute, under coercion or thereat.
4. Learned counsel for the petitioners would further submit that the 2nd respondent has lodged a complaint on 22.05.2014 with Police, CCS, Team-I, Hyderabad, who inturn registered a case in Cr.No.126 of 2014 for the offences under Sections 406, 420 and 506 IPC against the petitioners herein. After completion of investigation, the Police have filed final report on 22.05.2014 treating it as "FIR submitted as Action 3 dropped". By referring to the said final report, learned counsel for the petitioners would submit that the Police have filed the said final report by specifically mentioning that the 2nd respondent and the 2nd petitioner went to CCS, DD office and stated that they have settled the matter outside the Court and submitted a written compromise letter and they have requested to drop further action in the case. By referring the same, the Investigating Officer in Cr.No.126 of 2014 filed final report stating as "Action Dropped".
5. Learned counsel for the petitioners by referring to the contents of the complaint in the present CCs would submit that though the 2nd petitioner and the 2nd respondent have settled the matter outside the Court and though the Police have filed final report, with the very same allegations by taking the advantage of the possession of the cheques of the petitioners, the 2nd respondent has filed the present three complaints only to harass the 2nd petitioner for wrongful gains. According to him, it is abuse of process of law.
6. Learned counsel for the petitioners would submit that there is no mention in the complaints that the Power of Attorney holder is having knowledge of the entire facts and well versed with the transactions between the petitioners and the 2nd respondent. He has also not filed an affidavit as required under Section 200 Cr.P.C. Even then, without verifying the same, the learned Magistrate has taken cognizance of the complaint under Section 138 of the Act, which is in violation of principle laid 4 down by the Hon'ble Apex Court in Priyanka Srivastava And Another vs. State of Uttar Pradesh And Others1.
7. Learned counsel for the petitioners by referring to the principle laid down by the Hon'ble Apex Court in Vinita S.Rao vs. Essen Corporate Services (P) Ltd2, would submit that the complaint filed through Power of Attorney holder is not maintainable.
8. With the said submissions, learned counsel for the petitioners seeks to quash the proceedings in CC.Nos.489, 435 and 434 of 2018.
9. On the other hand, learned counsel for the 2nd respondent would submit that the 2nd respondent has executed the Power of Attorney on 29.04.2015 itself. There is an endorsement of the notary of Embassy of India, Washington DC, USA to the said effect. The petitioners are taking advantage of the word typed as 'May' in the Power of Attorney and contending that as on the date of filing of the complaint, there is no GPA in favour of the Power of Attorney holder. But in fact, the Power of Attorney is dt.29.04.2015 itself. He would further submit that it is a factual aspect which has to be decided during the course of the trial. The said contention of the petitioners cannot be a ground for the purpose of quashing of the present proceedings in CC.Nos.489, 435 and 434 of 2018, for the offence under Section 138 of the Act. He would further submit that the dispute between the 2nd petitioner and the 2nd respondent in 1 (2015) 6 SCC 287 2 (2015) 1 SCC 527 5 Cr.No.126 of 2014, pending on the file of CCS, Team-I, Hyderabad is altogether different. The said dispute is nothing to do with regard to the present transactions between the parties. By referring to the final report dt.22.05.2014 in Cr.No.126 of 2014, learned counsel for the 2nd respondent would submit that the said dispute is with regard to purchase of the land admeasuring Ac.13-00 situated at Warangal District and obtaining an amount of Rs.1.83 crores from the 2nd respondent by the 2nd petitioner herein. The said issue was settled between the parties and they have informed the Investigating Officer in Cr.No.126 of 2014 that the matter has been settled between the parties. The cheque numbers mentioned in the said final report are different from the cheque numbers in the present three complaints.
10. According to the learned counsel for the 2nd respondent, the sworn statement as required under Section 200 Cr.P.C. was filed along with the complaints itself. On verification of the same, learned Magistrate has taken cognizance of offence under Section 138 of the Act against the petitioners herein. He would further submit that the petitioners herein without verifying the same in the sworn affidavit in the above said CCs raised that objection which is not a substantial objection. Thus, there are several factual aspects to be elicited during trial. According to him, the petitioners instead of proceeding with the trial, approached this Court by way of filing the present petitions seeking to quash the complaints. With the 6 above submissions, the learned counsel for the 2nd respondents seeks to dismiss the present petitions.
11. Learned Public Prosecutor on instructions would submit that there are factual aspects which are to be decided during the course of trial. The petitioners will have an opportunity of cross-examination of prosecution witnesses including the 2nd respondent-complainant and his Power of Attorney holder. Instead of availing the said facility, the petitioners herein have filed the present petitions seeking to quash the complaints under Section 482 Cr.P.C. With the said contentions, learned Public Prosecutor sought dismissal of the present petitions.
12. The above said aspects would reveal that there is no dispute that the 2nd respondent i.e., Ravi Puli, S/o.Rajaiah, resident of USA has executed Power of Attorney in favour of B.Pradeep Kumar, S/o.B.Ramaiah. The purpose of execution of the said Power of Attorney is also specifically mentioned therein. A perusal of the Power of Attorney would reveal that the same was executed at Washington DC, USA. At one place i.e., last paragraph of the Power of Attorney, it is mentioned that the same was executed on 29th May, 2015 at Washington DC whereas in the bottom of the said Power of Attorney, there is an endorsement "Sushma Sushil Kumar, Assistant Consular Officer, Embassy of India, Washington, DC (USA), Apr 29 2015". There are two witnesses to the said Power of Attorney. There is another endorsement in the very same Power of Attorney as 7 "S.No.1855, Seen in the Consular Section of the Embassy of India, Washington DC on this 29th day of April, 2015". There is one more endorsement which reads as "Mr.Ravi Puli, verified as per Passport No. F 3933016, Washington, DC, Issued at Sep 20, 2005".
13. According to the 2nd respondent, the said Power of Attorney was executed on 29.04.2015 whereas the complaints were filed on 14.05.2015. Therefore, the said Power of Attorney was in existence as on the date of filing of the complaints and the Court below on verification of the same only taken cognizance of the offence against the petitioners under Section 138 of the Act.
14. A perusal of the Power of Attorney would reveal that there is an endorsement by the Assistant Consular Officer on 29.04.2015 itself and an endorsement of Indian Embassy on 29.04.2015 itself. In the last paragraph of the said document, the word 'May' is typed. By referring to the same, learned counsel for the petitioners would submit that the same was executed on 29.05.2015. Whether the said Power of Attorney was executed on 29.05.2015 or 29.04.2015 is a question of fact to be elicited during the trial. It is also relevant to note that the petitioners will be given an opportunity of cross-examination of prosecution witnesses. They can avail the said opportunity to prove that there is no Power of Attorney as on the date of filing of the complaints on 14.05.2015 and instead of availing the said opportunity, the petitioners herein filed the present petitions to 8 quash the proceedings in CCs itself. Therefore, according to this Court, on the said ground, the proceedings in the complaints cannot be quashed in exercise of power of this Court under Section 482 Cr.P.C.
15. With regard to other contentions raised by the petitioners that the complaints filed under Section 200 Cr.P.C. through Power of Attorney holder are not maintainable are concerned, this Court vide order dt.05.02.2021 in Crl.P.No.222 of 2021, by referring to the principle laid down by a three-Judge Bench of Hon'ble Apex Court in A.C.Narayana v. State of Maharashtra3 and the Karnataka High Court in Nagarajappa v. H.D. Kumar Swamy4, held that a complaint filed through Power of Attorney holder is maintainable.
16. In A.C. Narayanan1, a Three-Judge Bench of the Apex Court had an occasion to deal with the issue of maintainability of complaint filed by a original complainant through power of attorney holder. In the said case, the complaint was filed under Section 200 of the Code for the offence under Section 138 of the Negotiable Instruments Act, 1881. The complaint was filed through a power of attorney holder. The Apex Court by referring to various judgments rendered by it earlier, held as under:
"19). As noticed hereinabove, though Janki Vashdeo Bhojwani (supra), relates to powers of Power of Attorney holder under CPC but it was concluded therein that a plaint by a Power of 3 (2014) 11 SCC 790 4 Crl.P.No.1174 of 2012 decided on 11.10.2018 9 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 Vyas vs. 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 able to bring on record the truth of the grievance/offence, otherwise, no criminal justice could be achieved in case payee or holder in due course, is unable to sign, appear or depose as complainant due to above quoted reasons. Keeping these aspects in mind, in MMTC (supra), this Court had taken the view that if complaint is filed for and on behalf of payee or holder in due course, that is good enough compliance with Section 142 of N.I.
Act."
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17. Following the said principle held by the Apex Court in A.C. Narayanan1, the Karnataka High Court in Nagarajappa2 held that power of attorney holder can maintain a private complaint filed under Section 200 of the Code. In the said case, a complaint was filed by the original complainant through his General Power of Attorney Holder for the offences punishable under Sections 500, 501 and 502 of IPC.
18. The Karnataka High Court applying the principle laid down by the Apex Court in A.C. Narayanan1 and other judgments held that in view of the fact that there being no power under Section 199 of the Code for filing a petition through power of attorney holder, the complaint filed by the original complainant through power of attorney holder is maintainable.
19. Following the said principle in Crl.P.No.222 of 2021, this Court held that a complaint under Section 200 Cr.P.C filed through Power of Attorney holder can be maintained. In view of the said authoritative law, the contention of the petitioners that the complaints filed through Power of Attorney holder are not maintainable is not sustainable.
20. Learned counsel for the petitioners has also raised another ground that the Power of Attorney holder is not having knowledge of the facts and he has not conversant with the transactions. There is no mention either in the Power of Attorney or in the complaints that the Power of Attorney is 11 conversant with the facts and he is having knowledge of the facts.
21. A perusal of the Power of Attorney would reveal that there is a specific mention that Power of Attorney will act on behalf of principal to do or to execute all or any of the acts or things which are mentioned therein including filing of the complaint, engaging lawyers etc. It is mentioned in the Power of Attorney, that the acts done by Attorney holder shall be deemed to have been done by the principal himself, his heirs, executors, administrators and legal representatives and ratified to that effect.
22. In the complaint filed under Section 200 Cr.P.C. there is a specification which reads as follows:
"I, the complainant herein do hereby verify that the above contents are true and correct to the best of my knowledge, belief and information."
23. Thus, there is a mention that the Power of Attorney holder is having knowledge and belief with regard to the transaction of facts and he has verified the contents of the complaints to the said effect. However, it is a question of fact which has to be elicited during the full fledged trial. The petitioners will be given an opportunity of cross-examination to prove the said fact that whether the Power of Attorney holder is having knowledge of facts of the present case or not. They can take advantage of the same and get acquitted. Instead of availing the same, the petitioners herein have filed the present complaints seeking to quash the CCs itself.
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24. It is also relevant to note that the learned counsel for the 2nd respondent during the course of arguments has also mentioned that there is every possibility of 2nd respondent himself coming to India and depose in the said CCs and that the matters are posted for trail. Even during the course of cross- examination, the said facts can be elicited from the 2nd respondent or his Power of Attorney holder. There is considerable force in the said contention. The petitioners instead of availing the said opportunity, filed the present petitions seeking to quash the present proceedings and the same is not sustainable.
25. The 2nd respondent has filed sworn affidavit along with complaints as required under Section 200 Cr.P.C. In view of the same, the said contentions raised by the learned counsel for the petitioners that the complainant has not filed affidavit as required under Section 200 Cr.P.C is also not sustainable.
26. During the course of arguments, learned counsel for the 2nd respondent would submit that the chief affidavit was filed in March, 2019. Even then, instead of proceeding with the cross-examination, the petitioners herein filed the present petitions with a view to drag on the matter on one pretext or the other.
27. Admittedly, the complaints are of the year, 2018 and the offence is under Section 138 of the Act. It is a summary trial procedure. The petitioners can proceed with the trial and prove that the cheques were not issued towards legally 13 enforceable debt and that the 2nd respondent obtained the said cheques in dispute under threat and coercion. Instead of doing so, the petitioners filed the present petitions. Thus, as discussed supra, there are several factual aspects which are to be elicited during full fledged trial.
28. In view of the above said discussion, the petitioners failed to establish any ground warranting interference of this Court in exercise of its power under Section 482 Cr.P.C., these petitions fail and accordingly they are dismissed. Interim order granted earlier is vacated.
Miscellaneous Petitions, pending if any, shall stand closed.
__________________ K. LAKSHMAN, J Date: 05.03.2021 dv