Sri Radha Pad Tentiwala vs State Of U.P. And Another
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Allahabad High Court

Sri Radha Pad Tentiwala vs State Of U.P. And Another on 9 January, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:5025
 
Court No. - 77
 

 
Case :- APPLICATION U/S 482 No. - 32544 of 2024
 

 
Applicant :- Sri Radha Pad Tentiwala
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Rama Goel Bansal,Shalini Goel
 
Counsel for Opposite Party :- G.A.,Hitesh Pachori
 

 
Hon'ble Arun Kumar Singh Deshwal,J.
 

1. Heard Ms. Shalini Goel, Advocate along with Ms. Rama Goel Bansal, learned counsel for applicants, Sri Hitesh Pachori, learned counsel for opposite party no. 2 and Ms. Ruchi Mishra, learned State Law Officer for the State and perused the record.

2. The instant application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings of Complaint Case No. 5126 of 2024 (Shri Gyan Prakash Vs. Radha Pad Tentiwala), under Section 138 N.I. Act, P.S.- Hari Parvat, District- Agra, summoning order dated 19.06.2024 passed by court of A.C.J.M., Court No. 5, Agra.

3. Learned counsel for the applicant submitted that impugned complaint has been filed by power of attorney holder of complainant without disclosing the fact in the complaint that he was aware about transaction, therefore, complaint is not maintainable. In support of her contention, she relied upon the judgment of Apex Court in the case of A.C. Narayanan Vs. State of Maharashtra and another reported in 2014 (11) SCC 790, paragraph nos. 15, 23 and 26. It is further submitted by learned counsel for applicant that while passing the summoning order, court below has not recorded any satisfaction and summarily summoned the applicant though the reason should be recorded before the coming on conclusion on prima facie satisfaction, therefore, same is cryptic in nature.

4. Learned counsel for the applicant has submitted that cheque in question was returned with the endorsement mismatch of signature therefore, no offence under Section 138 N.I. Act is attracted.

5. Per contra, learned counsel for opposite party no. 2 submitted that in paragraph no. 1 and 5 of the complaint, it is specifically mentioned that power of attorney holder of the complainant being the son of the complainant is aware of entire facts and the cheque in question was given by the applicant to the opposite party no. 2 in the presence of the power of attorney holder. It is further submitted that in the verification clause, it was specifically mentioned that power of attorney holder has knowledge of the fact mentioned in the complaint.

6. Learned counsel for opposite party no. 2 further submitted that ground regarding mismatch of signatures as reason to return the cheque in question is misconceived because this Court has already observed in the case of Vijay Kumar Vs. State of U.P. and another passed in Application U/S 482 No. 17464 of 2024 that even if cheque in question is returned with the endorsement signature differed or mismatch, process can be issued against the drawer of the cheque and the defence of the accused against such dishonour can be raised during trial but cannot be a ground to quash the proceeding of complaint case.

7. Learned AGA as well as counsel for opposite party no. 2 further submitted that there is no illegality in the impugned proceeding.

8. After hearing learned counsel for the parties and perused the record, it appears that from the averments made in the complaint that the power of attorney holder is the son of the complainant and in para no. 5, it is mentioned that cheque in question was given in the presence of the power of attorney holder by the applicant to the opposite party no. 2. It is further mentioned that in verification clause the power of attorney holder is aware of about all the fact mentioned in the affidavit filed in support of complaint. So as to the judgment relied upon by the counsel for applicant in the case of A.C. Narayanan (supra) in that judgment the Apex Court has observed that though power of attorney holder can file complaint, it must be reflected from the complaint and supporting the material that power of attorney holder is aware about transaction in question.

9. Paragraph nos. 15, 23 and 26 of the judgment passed in the case of A.C. Narayanan (supra) is hereinunder:-

"15) In terms of the reference order, the following questions have to be decided by this Bench:

(i) Whether a Power of Attorney holder can sign and file a complaint petition on behalf of the complainant?/ Whether the eligibility criteria prescribed by Section 142(a) of NI Act would stand satisfied if the complaint petition itself is filed in the name of the payee or the holder in due course of the cheque?

(ii) Whether a Power of Attorney holder can be verified on oath under Section 200 of the Code?

(iii) Whether specific averments as to the knowledge of the Power of Attorney holder in the impugned transaction must be explicitly asserted in the complaint?

(iv) If the Power of Attorney holder fails to assert explicitly his knowledge in the complaint then can the Power of Attorney holder verify the complaint on oath on such presumption of knowledge?

(v) 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?

23) In the light of the discussion, we are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the N.I. Act. An exception to the above is when the power of attorney holder of the complainant does not have a personal knowledge about the transactions then he cannot be examined. However, where the attorney holder of the complainant is in charge of the business of the complainant-payee and the attorney holder alone is personally aware of the transactions, there is no reason why the attorney holder cannot depose as a witness. Nevertheless, an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint. On this count, the fourth question becomes infructuous.

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 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 N.I 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 N.I 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 N.I. 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."

10. The Apex Court, in the case of TRL Krosaki Refractories Limited Vs. Ms/ Sms Asia Private Limited and others 2022 (7) SCC 612 has considered the case of A.C. Narayanan and observed that memo of explicitly stating the knowledge of transaction in the complaint it cannot be described in any particular manner but it can be inferred on the complaint and other accompanying documents.

11. Paragraph no. 25 of the TRL Krosaki Refractories Limited (supra) is quoted hereinunder:

"25. In that view, the position that would emerge is that when a company is the payee of the cheque based on which a complaint is filed under Section 138 of N.I. Act, the complainant necessarily should be the Company which would be represented by an employee who is authorized. Primafacie, in such a situation the indication in the complaint and the sworn statement (either orally or by affidavit) to the effect that the complainant (Company) is represented by an authorized person who has knowledge, would be sufficient. The employment of the terms ?specific assertion as to the knowledge of the power of attorney holder? and such assertion about knowledge should be ?said explicitly? as stated in A.C. Narayanan (supra) 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 authorized 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 authorized 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. Pvt. Ltd. (supra), 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."

12. The Apex Court again in the case of M/s Naresh Potteries Vs. M/s. Aarti Industries and another (2025) INSC (1) again considered the judgment of A.C. Narayanan and TRL Krosaki Refractories and observed that knowledge of power of attorney holder about the transaction can be inferred from the complaint as well as other documents filed in support thereof including the affidavit of power of attorney holder. In this case the Apex Court also observed that the inherent power under Section 482 Cr.P.C. should not be used to interfere to scuttle a fair investigation or prosecution.

13. Paragraph nos. 33 and 34 of M/s. Naresh Potteries (supra) are being quoted hereinunder:

"33. As referred to above, this Court in TRL Krosaki Refractories Limited (supra) had come to a categorical finding that what can be treated as an explicit averment, cannot be put in a straight jacket but will have to be gathered from the circumstance and manner in which it has been averred and conveyed, based on the facts of each case. The relevant portion of the said decision has already been extracted above. In the instant matter, the averments made in the documents referred to above, make it wholly clear that Sh. Neeraj Kumar possessed personal knowledge of the facts of the matter at hand and was well-equipped and duly authorised to initiate criminal proceedings against Respondent No.1. That beside the fact that it would always be open for the trial court to call upon the complainant for examination and cross- examination, if and when necessary, during the course of the trial. As such, a peremptory quashing of the complaint case by the High Court is completely unwarranted and that too on an incorrect factual basis.

34. Apart from that, this Court has repeatedly cautioned that the inherent powers under Section 482 of the Cr.P.C. should be exercised sparingly and with great caution and further that inherent powers should not be used to interfere with the jurisdiction of the lower courts or to scuttle a fair investigation or prosecution. In light of the well-settled law on the subject, we do not find that the instant matter called for any interference by the High Court in exercise of its discretionary powers under Section 482 of the Cr.P.C."

14. This Court has considered the judgment of A.C. Narayanan (supra) and other subsequent judgments of Apex Court in the case of Jitendra Kumar Mangla Vs. State of U.P. in Application U/S 482 No. 23721/2024 and observed that knowledge of power of attorney holder about transaction can be ascertained not only from the averments made in the complaint but also documents filed in support of the complaint.

15. Last submission of the applicant is that cheque in question was returned for mismatch of his signature, therefore no offence under Section 138 N.I. Act is attracted as same can be attracted only when cheque is returned for in sufficiency of fund, is also misconceived because this court in the case of Vijay Kumar (supra) has observed that returning of cheque on the ground of mismatching of signature will also attract the liability under Section 138 N.I. Act and defence of drawer of cheque would be considered at the time of trial.

16. Para-19 of Jitendra Kumar Mangla case is being quoted as under :-

"19. From the legal position discussed above, two questions which were framed above are answered as follows:-

(i). That the power of attorney holder cannot file a complaint in his name as if he was the complainant and he can prosecute only on behalf of his Principal;

(ii) Complaint u/s 138 N.I. Act can be filed by the power of attorney holder of payee or holder in due course. However, the Power of attorney holder cannot depose or verify on oath as complainant unless from the averments, including the verification of the affidavit filed in support of the complaint as well as from the supporting document, it must be clear that power of attorney holder has knowledge about the fact mentioned in the complaint regarding the transaction. If the accused disputes the knowledge of the fact of the power of attorney holder or his authority, the same can be considered during the trial but the proceeding cannot be quashed on this ground.

(iii) The transaction should be within the knowledge of the Power of attorney holder means and include in the transaction which created liability for which the cheque was issued."

17. In the present case, knowledge regarding transaction and other facts has been mentioned in paragraph nos. 1 to 5 of the complaint as well as in the verification clause. Therefore, the contention that impugned complaint is not maintainable at the instance of power of attorney holder, who is the son of the complainant, is misconceived because there is sufficient material on record to show that being the son of the complainant he was aware about all facts of complaint including the handing over the cheque in question to complainant in discharge of liability. Even otherwise in the judgment of Jitendra Kumar Mangal (supra), this court observed that if the issue in raised, regarding authority of power of attorney holder to file complaint that can be raised by the accused during trial but it cannot be ground to quash the proceeding, if there is some material on record showing that the power of attorney holder has knowledge about transaction.

18. So far as the contention of the applicant that impugned summoning order is cryptic in nature and is also misconceived because the Apex Court in the case of Sharif Ahmad and another Vs. State of U.P. and another in 2024 Live Law (SC) 337 has observed that while passing the summoning order, Magistrate is not required to explicitly record reason once after mentioning the material on record, the Magistrate is satisfied about the prima facie case, that would be sufficient for summoning the accused.

19. Paragraph no. 17 of Sharif Ahmad's case (supra) is being quoted as under:-

"17. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issue of summons and this is not a prerequisite for deciding the validity of the summons. Nevertheless, the requirement of the Code is that the summons is issued when it appears to the Magistrate that there is sufficient ground for proceeding against the accused. Summons is issued to the person against whom the legal proceedings have commenced. Wilful disobedience is liable to be punished under Section 174 of the Indian Penal Code, 186014. As a sequitur, keeping in mind both the language of Section 204 of the Code and the penal consequences, the Magistrate is mandated to form an opinion as to whether there exists sufficient ground for summons to be issued. While deciding whether summons is to be issued to a person, the Magistrate can take into consideration any prima facie improbabilities arising in the case. The parameters on which a summoning order can be interfered with are well settled by the decision of this court in Bhushan Kumar (supra). The Magistrate in terms of Section 204 of the Code is required to exercise his judicial discretion with a degree of caution, even when he is not required to record reasons, on whether there is sufficient ground for proceeding. Proceedings initiated by a criminal court are generally not interfered with by High Courts, unless necessary to secure the ends of justice."

20. This Court does not find any illegality in the impugned proceeding and all the grounds raised by the accused applicant are his defence which can raise by him during trial. Accordingly, this present application is dismissed.

Order Date :- 9.1.2025

Sharad/-