A Rafeeq vs C Vijaya
2023 Latest Caselaw 5397 AP

 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

            CRIMINAL PETITION No.2885 OF 2019

ORDER:

The present Criminal Petition is filed under Section 482 of

the Code of Criminal Procedure, 1973 (Cr.P.C.), praying to call

for the record and to quash the complaint in C.C.No 225 of 2018

on the file of XII Additional Metropolitan Magistrate,

Gannavaram, Krishna District.

2. The petitioner herein is the accused and the 1st respondent

is complainant. To avoid confusion, hereinafter the petitioner

will be referred as „accused‟ and that of 1st respondent as

„complainant‟.

3. Precisely, the facts of the case are that:

The complainant and the brother of the accused are bosom

friends. Both the complainant and the GPA holder were brother

and sister having joint family lands situated in Kaltur of Agiripilli

Mandal and the accused used to receive amounts from the

complainant‟s brother for his business purpose and used to

repay the same amount. On 11.04.2016, the accused has

borrowed an amount of Rs.2 crores from the complainant‟s

brother for the purpose of development of business and for his

family expenses and agreed to repay the same together with

interest @ Rs.24% per annum and when demanded, either by

complainant‟s brother or her brothers, the accused has executed

a demand promissory note in favour of the complainant‟s

brother, in which the complainant is the first attestor and she is

having knowledge of every transaction with the accused and her

brother.

4. Thereafter, in spite of several demands made by the

complainant as well as her brother to discharge the legally

enforceable debt, on 16.01.2018, the accused issued a cheque in

favour of the complainant‟s brother, vide cheque bearing

No.779922 drawn on ICICI Bank Limited, Hyderabad Branch, for

Rs.2,50,00,000/-. The complainant‟s brother has presented the

said cheque in his bank, i.e., Axis Bank, Gannavaram for the

purpose of collection, but on 19.02.2018, the Branch Manager,

Axis Bank, Gannavaram informed the complainant‟s brother that

the cheque issued by the accused is a fraudulent as the cheque

is coloured Xerox copy of cheque and return memo issued by the

ICICI Bank along with the counter letter to the complainant and

the same was confirmed by the Branch Manager, ICICI Bank,

Chennai in its cheque returned memo dated 23.01.2018. On

receiving the memo from the bank authorities, the complainant

has issued a legal notice dated 16.03.2018 to the accused and

he received the postal acknowledgment dated 19.03.2018 and

the accused has issued a reply notice dated 27.03.2018 and

thereafter, the complainant has presented the present complaint,

which is impugned in the present Criminal Petition to take

action against the accused for the offence punishable under

Sections 138 and 142 of the Negotiable Instruments Act, 1881

(hereinafter referred, „the NI Act‟, for short).

5. Learned counsel for the accused would agitate to quash the

C.C.No.225 of 2018 in the present Criminal Petition on two

grounds: viz., (i) the GPA was executed on 29.01.2018, but the

recital in the GPA shows that the cheque was bounced on

19.02.2018 and a future bouncing waste was mentioned in the

same and that itself is evident that the GPA is ante-dated, on

such GPA the complainant can maintain the complaint; and the

second ground that is agitated by the learned counsel for the

accuser is that GPA holder can only initiate criminal proceedings

on behalf of the principal under Section 200 Cr.P.C. and the GPA

holder cannot file a complaint in her own name as if her is a

complainant and the complaint would implicitly show that GPA

holder herself has filed the complaint, as such, the complaint is

not valid and hence pray to quash the complaint.

6. Learned counsel for the accused relied on the judgment of

Apex Court in A.C.Narayana Vs. State of Maharashtra and

another1, wherein it is held that where the payee is a proprietary

concerned, the complaint or offence punishable under Section

138 of N.I. Act can be filed: (i) by the proprietor of the proprietary

concern, describing himself as sole proprietor of the 'payee'; (ii)

the proprietary concern, describing itself as sole proprietary

concern, represented by its sole proprietor; and (iii) the

proprietor or the proprietary concerned represented by attorney

holder under a power of attorney executed by the sole proprietor.

However, GPA holder cannot file a complaint in his own name as

if her is a complainant that GPA holder can only initiate criminal

proceedings on behalf of the principal under Section 200 Cr.P.C.

and Section 60 of the Indian Evidence Act.

7. The learned counsel for the complainant would submit that

accused has issued the coloured xerox cheque in order to

deceive the complainant and the accused lodged a complaint to

Gannavaram police, which is subject matter of FIR No.64 of

(2014) 11 SCC 790

2019 for loss of cheque after 7 months after filing of the

complaint and the police has referred the FIR as false and the

date mentioned in GPS as 29.01.2018 is typographical mistake

and the mistake can be explained during the course of trial and

it can be subsequently remedied and the defect need not

necessarily be fatal and he relies on the Judgment of the Apex

Court in TRK Krosaki Refractories Ltd., vs SMS Asia Private Ltd. 2,

for the proposition that:

"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

(2022) 7 SCC 612

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".

8. Learned counsel for the complainant would submit that the

drawee bank i.e., Branch Manager, Axis Bank, Gannavaram, has

informed the drawee about the bouncing of cheque and

thereafter, the complainant has got issued a legal notice

intimating the bouncing of cheque to the accused and the

accused got issued a reply to the legal notice that he has not

taken the stand which is orally raised in the Criminal Petition.

9. Point:

Section 85 of the Evidence Act would envisage that which

is extracted below:

"85. Presumption as to powers of attorney - The Court shall presume that every document purporting to be a Power of Attorney, and to have been executed before, authenticated by, notary public, or any Court, Judge, Magistrate, Indian Consul, or Vice Consul, or

representative of the Central Government, was so executed and authenticated."

10. The objective of execution of the Power of Attorney is to give

authority to the person to do particular act on his behalf,

whereby the grantor authorizes the grantee to do the acts

specified therein, on behalf of grantor, which when executed will

be binding on the grantor as if done by him (see Section 1A and

Section 2 of the Powers of Attorney Act, 1882). It is not a

financial term nor an eligibility term but merely the authority to

file the complaint.

11. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh 3, it is

held as follows:

"The object of Courts is to decide the rights of parties and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their rights ... Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy.

If therefore there was an inadvertent technical violation of the rule in consequence of a bona fide mistake, and the mistake is subsequently remedied the defect need not necessarily be fatal."

(2006) 1 SCC 75

12. This Court held that procedural defects and irregularities

which are curable should not be allowed to defeat substantive

rights or to cause injustice. Procedure should never be made a

tool to deny justice or perpetuate injustice by any oppressive or

punitive use. The Court held as under:-

"17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are:

(i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance;

(ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;

(iii) where the non-compliance or violation is proved to be deliberate or mischievous;

(iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court;

(v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant."

13. While holding that there is no serious conflict between the

decisions in M.M.T.C. Ltd. v. Medchl Chemicals and Pharma (P)

Ltd.4, and Janki Vashdeo Bhojwani v. Indusind Bank Ltd. 5, by

clarifying the position and answered 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

(2002) 1 SCC 234

(2004) 3 SCC 584

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".

14. In MSR Leathers vs S. Palaniappan 6, decided by the Hon‟ble

Supreme Court in paragraph No.29, it was held that:

"It is trite that the object underlying Section 138 of the NI Act is to promote and inculcate faith in the efficacy of banking system and its operations giving creditability to negotiable instruments in business transactions and to create an atmosphere of faith and reliance by discouraging people from dishonouring their

(2013) 1 SCC 177

commitments which are implicit when they pay their dues through cheques. The provision was intended to punish those unscrupulous persons who issued cheques for discharging their liabilities without really intending to honour the promise that goes with the drawing up of such a negotiable instrument. We must add that one of the salutary principles of interpretation of statutes is to adopt an interpretation which promotes and advances the object sought to be achieved by the legislation, in preference to an interpretation which defeats such object.

15. This discrepancy in the present Criminal Petition is about

mentioning the future date of bouncing of the check, i.e., the

date of February 19, 2018, in GPA, which was executed on 29th

January, 2018, and that has to be explained by the complainant.

Whether the discrepancy in the present case can be stated to be

of a technical nature or whether it would go to the root of the

case and cause prejudice to the accused, whether it is a curable

defect, whether the complainant has been able to explain this

discrepancy, and whether it is permissible for the complainant to

explain away this discrepancy is a question of fact that should

be raised during the trial.

16. The Apex Court has, as far back as, in the case of Vishwa

Mitter v. O. P. Poddar7, held that it is clear that anyone can set

the criminal law in motion by filing a complaint of facts

constituting an offence before a Magistrate entitled to take

cognizance. It has been held that no court can decline to take

cognizance on the sole ground that the complainant was not

competent to file the complaint. It has been held that if any

special statute prescribes offences and makes any special

provision for taking cognizance of such offences under the

statute, then the complainant requesting the Magistrate to take

cognizance of the offence must satisfy the eligibility criterion

prescribed by the statute.

17. Keeping in view the above proposition of law which has

been relied upon by the learned counsel for the both the parties,

this is Court is of the opinion that the pleas taken that no such

cheques were issued by respondents accused and that the said

cheques had got lost which have been misused by the

complainant and the GPA is ante-dated and that the GPA holder

can only initiate criminal proceedings on behalf of the principal

under Section 200 Cr.P.C. GPA holder cannot file a complaint in

(1983) 4 SCC 701

her own name as if her is a complainant are all factual aspects

which cannot be decided in proceeding under 482 Cr.P.C. as a

detailed finding would be required after considering the entire

facts which the parties would be adducing before the trial Court

and then only conclusive finding would be recorded in this

regard. At the initial stage, when the accused has been merely

summoned to face the trial, it would be highly prejudicial and

would result in miscarriage of justice if the trial in the present

case is nipped in the bud. Therefore, the opinion of this Court is

that the present application deserves to be dismissed and is,

accordingly, dismissed.

18. The question whether disputed GPA on the basis of which

the complainant has filed the complaint and basing upon a

forged or in-genuine and that the GPA holder can only initiate

criminal proceedings on behalf of the principal under Section

200 Cr.P.C. GPA holder cannot file a complaint in her own name

as if her is a complainant, document is yet to be decided by the

Court that mere taking cognizance on the said GPA by the

learned Magistrate is of no consequence at present to quash the

complaint. And the trial Court is hereby specifically directed to

answer the issue in this regard.

19. The question whether disputed GPA on the basis of which

the complainant has filed the complaint and basing upon a

forged or genuine document is yet to be decided by the Court

and that mere taking cognizance on the said GPA by the learned

Magistrate is of no consequence at present to quash the

complaint, accordingly criminal petition liable to be dismissed, it

is accordingly dismissed.

20. Accordingly, the Criminal Petition is dismissed. As a

sequel, interlocutory applications, pending if any in this case,

shall stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 09.11.2023 siva

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

CRIMINAL PETITION No.2885 OF 2019

Date: 09.11.2023

siva