Mamatadevi Prafullakumar ... vs Pushpadevi Kailashkumar Agrawal ...
2005 Latest Caselaw 521 Bom

JUDGMENT

A.H. Joshi, J.

1. The facts in brief can be stated as follows :--According to the complainant, she had advanced a loan of Rs. 5 lackhs to accused. The accused person failed to repay the loan and ultimately the accused delivered to the complainant a cheque of Rs. 2,50,000/- dated 24-10-2001 bearing No. 1979158 drawn on Khamgaon Urban Co-operative Bank Ltd., Khamgaon, Branch Paratwada, towards the repayment of the loan with an assurance that the cheque shall be honoured positively.

The cheque was dishonoured when deposited with Banks remark "fund insufficient in the account of the accused". On 16-11-2001 complainant issued notice by Registered Post as well as by Under Certificate of Posting on 16-11-2001 on the original address of the accused. The notice served by the UCP was received by the accused, however, the Registered A.D. envelop was received with Post Office remark "do not claimed". According to the complainant, despite knowledge of liabilities, the accused did not make the payment. Complainant treated it as deemed service of notice, therefore, filed a private complaint.

2. The Complainant Pushpa w/o Kailashkumar Agrawal filed a complaint in her own name representing herself through power of attorney Shri Kailashkumar Ramraj Agrawal who is her husband. In the body of complaint an averment is made that all transactions towards which the cheque was given had taken place in presence of the husband of the complainant who is her power of attorney. The amount of cheque was towards the part payment of hand loan which was paid by cheque. According to the complainant, she has done all transactions through her husband - the power of attorney as well that he is the holder in due course.

The complaint is signed by the complainant as well as by her power of attorney.

3. The verification statement of complainant's husband Kailashkumar Agrawal who is her power of attorney was recorded. The learned Judicial Magistrate, First Class, passed order which reads as follows :

Order

Presented by the complainant's power of attorney on 27-12-2001. Register as summons case. Perused complaint, verification statement with record. Heard.

Accused is prima facie seen involved in offence under Section 138 of N.I. Act. Hence issue process against him. P.P. be paid

Sd/- illegible"

4. The accused person submitted application for recall of order of issue of process, on 14-11-2002, on the ground that the complaint was filed, presented by the power of attorney as well statement of power of attorney was recorded, and on this count alone that it was liable to be dismissed. The ground did not find favour with the learned Magistrate, First Class, and he, therefore, dismissed the application.

In the Criminal Revision No. 9/04 raising same objection as ground was agitated as can be read from Grounds (b), (c), (i) and (j).

b) That the learned Trial Court erred in holding that the order to issue process is passed after verification statement of the complainant, whereas in fact, there is no verification statement of the complainant on record.

c) That the learned Trial Court erred in holding and caused thereby miscarriage of justice that the verification statement of the alleged Power of Attorney Holder as of the complainant, which is contrary to law and mandatory provisions.

i) That the learned Trial Court also lost sight to the fact that the complaint, as having been filed through alleged Power of Attorney Holder and not by the complainant herself, was not legally and properly presented as required under the law, and on the basis of which cognizance cannot be taken by the Court, under law.

j) That the learned Trial Court ought to have held that the Power of Attorney Holder has no locus standi to move the Court for taking cognizance of alleged offence punishable under Section 138 of the Negotiable Instruments Act, and more particularly, in view of Section 142 of the said Act.

5. The learned Sessions Judge, however, dismissed the revision application holding that the complaint filed by the power of attorney holder was maintainable. The learned Sessions Judge recorded the finding that :

"In view of the ruling of the year 2002 it appears that the complaint is to be filed by the payee or the holder of the cheque. The verification of complaint is altogether a different matter and it is required to be made to prove prima facie case against accused. In this case there is no reference about filing of complaint by power of attorney holder. In this case the complaint was not at all signed by the complainant. Hence, it is observed by the Court that if these two rulings are considered together along with the rulings filed on record by the learned advocate appearing for respondent No. 1, it is appears that a person holding power of attorney for complainant is entitled to file complaint against accused and verification of complaint can be made through any person. However, complainant must sign the complaint. In the present case all the three complaint cases are signed by the complainant. However, she presented the same in the Court through her power of attorney holder and verification statement of a person holding power of attorney for complainant is recorded by the learned lower Court. In view of the rulings cited above, I am of the opinion that as the complainant has signed all complaint cases, the complaints are in writing under the signatures of complainant. In view of the ruling cited above, the presentation of the complaint through power of attorney holder and recording of his verification statement is permissible".

This judgment of Sessions Court, dated 16th July, 2004, is challenged in present application.

6. The learned Advocate for the applicant made submissions in support of the petition which can be summarized in the context form as follows :

(i) That the cognizance of an offends under Section 138 is a matter prescribed by special enactment, and the special procedure prescribed under Section 142 of the Negotiable Instruments Act is a complete code in itself and needs to be followed scrupulously.

(ii) The non-obstante clause employed in Section 142 of the Negotiable Instruments Act creates a mandatory duty on the Court as to exercise of the power of Court of taking cognizance as to compliance of certain mandatory requirements as to the person who shall file a written complaint, i.e. the "complainant" him/herself and none else, and it needs to be complied with.

(iii) The mention of word "payee" by the very fact, admits no other person than the payee to be a complainant at whose behest the cognizance would be permissible.

(iv) The contents of complaint which refer to the description of the power of attorney, as a person in whose presence entire transaction taken place, can at the most be a witness and therefore, a complaint filed by the power of attorney is no complaint in the eye of law and the criminal law cannot be put into motion by such persons.

(v) Mere signing of the complaint by a payee is not sufficient compliance.

(vi) When law requires a particular thing to be done in a particular manner or the procedure to be followed in a particular manner which ought to be so followed and in no other way.

The learned Advocate Shri Saboo does not dispute that procedure to be adopted after presentation of complaint namely that it is governed by Criminal Procedure Code only, and according to him, only restriction that is created by Section 142 is in relation to the complaint being filed by the payee or holder in due course.

7. The learned Advocate Shri Saboo placed reliance on various judgments to substantiate his plea. The judgments are stated and soon discussed as hereinafter.

8. III (2002) BC 77, S.P. Sampathy v. Smt. Manju Gupta and Anr. delivered by Andhra Pradesh High Court (Coram : Bilal Nazki and Gopala Krishna Tamada, JJ)

This judgment has been relied upon by the learned Advocate in support of plea that a complaint of an offence under Section 138 of Negotiable Instruments Act when filed by Power of Attorney is not competent and no cognizance can be taken if it is filed through a power of attorney.

9.(i) 2002(5) Mh.L.J. 433, Finolex Industries Ltd. v. Pravin V. Sheth and Ors.;

(ii) 2007 (2) All. M.R. (Journal) 1, Nayagam Lourd Prakash v. Standard Chartered Bank, Sec'bad and Anr. (Coram : Vaman Rao, J.)

The first judgment at item (i) is by His Lordship, Justice R.K. Batta, J. This was a case filed in the name of the company Finolex Industries Ltd., under Section 138 of Negotiable Instruments Act, which was signed by M/s Crawford Bayley and Company, Advocate for the complainant company. The Vakalatnama was not filed with the complaint. The Court held that since the complaint was not signed nor Vakalatnama was filed by the complainant, there was no complaint in the eyes of law. The Court found that even the compliance namely verification statement of the complainant being recorded was not curative of the defect, and the Magistrate ordered dismissing the complaint was correct. This case is thus to be regarded to be totally inapplicable to the present case.

Next judgment at item (ii) was a complaint by the Standard Charted Bank, however, was filed by one Shri F.D. Irani, who was not shown to be payee or authorised by the payee Bank, but was authorised by the power of attorney, which delegation was held to be incompetent. The ratio laid down in this case does not in any manner serve any assistance to the applicant herein and this judgment has no worth for the petitioner.

10. (i) 2003(2) All M.R., RBF Nidhi Ltd. and Anr. v. State of A.P. and Ors. (Coram : CH S.R.K. Prasad, J.)

(ii) 2001(4) All Mah.L.R., A. Krishnan v. S.P. Kumar (Coram : M. Karpagavinayagam, J.)

(iii) 2000 (Supp.) Bom.C.R. 325, Pradeep Mohanbay (Dr.) v. Minguel Carlos Dias (Mr.) (Coram : R.K. Batta, J.)

It shall suffice to deal and discuss with the judgment delivered by this Court at item No. (iii), which though, not latest amongst the judgments which are cited above, deals with one amongst other the issues directly involved in the present case. The ratio laid down in this judgment can be summarized as follows

(A) A complaint filed by the power of attorney under N. I. Act is competent;

(B) The verification or sworn statement of the power of attorney is not adequate compliance of filing of verification statement or a sworn statement, because a power of attorney holder cannot received a power to depose, though he may in his own capacity be a witness in a case.

In the present case, on facts, though the judgments referred to above are relied upon by the petitioner, the ratio laid down therein does not support the contention of the petitioner since on the facts of case. In the present case the complaint is signed as well as filed in the name of the complainant as well as is signed by the power of attorney. The only aspect on which the petitioner may find favour is that the verification statement of the complainant is not recorded, however, statement of power of attorney is recorded, and this aspect is dealt with in this judgment at later part.

11.(i) 2004(1) Mh.L.J. 487 = 2003 All MR (Cri) 2523, Shri Vasant Waman Pradhan v. Shri Dattatraya Vithal Salvi and Anr. (Coram J.G. Chitre, J.)

(ii) 2001 Bank J. 633, (Kerala High Court), Harihara Iyer v. State of Kerala (Coram : A. R. Lakshmanan and S. Sankarasubban, JJ.)

In these judgments, what is held, discussed etc. is about the matters of "sworn statement of the complainant". The ratio of these judgment is that, Section 200, Criminal Procedure Code casts imperative duty not on the Magistrate not only to examine the complainant but also the witnesses, if any, and before taking cognizance even of complaint under Section 138 of N.I. Act in order to satisfy himself that prima facie offence has been made out.

The preposition of law stated above based on Section 200 of Criminal Procedure Code is eloquent enough, however, it would be necessary to discuss the purpose for which the "complainant" is to be examined. What needs to be adverted to is that complainant is to be examined to bring on record "Legal Evidence", and not just to have the evidence of "owner of the Negotiable instrument i.e. cheque". This aspect as well is discussed in later part of this judgment.

12.(i) 2005(1) Mh.L.J. 1170, Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors., (Supreme Court) (Coram : D.M. Dharmadhikari and H.K. Sema, JJ.)

(ii) 1999(3) SCC 614, T.C. Mathai and Anr. v. District and Sessions Judge, Thiruvananthapuram, Kerala

(iii) 2005 ALL MR (Cri) 259 (S.C.), Jimmy Jahangir Madan v. Bolly Cariyappa Hindley

(iv) 2002 A.I.H.C. 575, (Rajasthan High Court) Sikhar Chand v. Santi Kumar and Ors. (Coram : Shiv Kumar Sharma, J.)

In this set of judgment relied upon by the petitioner, the question dealt with is as to whether the power of attorney can depose as witness, and as to whether function as a witness could be delegated and whether the power derived by the attorney could further be delegated.

It shall suffice to refer to latest Supreme Court judgment at Item (i) above. The ratio that was laid down therein is decisive of issue. Lordships of Supreme Court approved the view taken by Rajasthan High Court in Shyambhau Datta Shastri reported in 1986 (2) WLL 732, wherein the Rajasthan High Court took a view that, "attorney holder can act, appear and plead on behalf of party and he can be a witness on behalf party". The Supreme Court expressed its disapproval to the view taken by this Court in Humberto Luis and Anr. v. Floriano Armando Luis and Anr., 2000(1) Mh.L.J. 690, where this Court had taken a view that by virtue of Order III Rule 2 of Civil Procedure Code, power of attorney holder is not disentitled to depose on behalf of his principal. The prepositions that emerges can be summarized as follows which would have binding force, namely -- that being a witness is a personal -- undelegable capacity.

It, however, needs to be seen is that in these set of judgments there is no reference to the aspect namely, "how shall the situation be dealt with if apart from being a power of attorney or in spite of being a power of attorney, the person holding the power 'alone' or 'himself is the main or only witness of the case including a case under N. I. Act".

The question as to whether and in what circumstances the power of attorney could, not just 'as well' but could 'alone' be a witness is not dealt with in these judgments, and calls for being addressed and decided.

13.(i) AIR 2001 SC 567, Pankajbhai Nagjibhai Patel v. State of Gujarat and Anr.

(ii) 1997 Cri.L.J. 1866, H. Mohan and Anr. v. State of Karnataka

(iii) AIR 1986 SC 2160, A. K. Roy and Anr. v. State of Punjab and Ors..

The first two judgments i.e. (i) and (ii) are relied upon to plead and contend that the N.I. Act lays down a special procedure and it shall have an overriding effect. This judgment is relied to argue that filing of complaint by "complainant or payee or holder in due course", and recording evidence of such payee or holder in due course is imperative. The judgment in case of Pankajbhai Nagjibhai Patel, however, explains in the form of rider to the overriding non-obstante clause. The ratio thereof can be narrated as follows :--

While the procedure of lodgment of complaint, about the forum, the person who shall file it and limitation are prescribed under Section 142 of N.I. Act, for all other matters namely taking of cognizance, trial and limitation as to sentence are governed by Criminal Procedure Code. The judgments, therefore, will have to be read to lay down that barring that the "cognizance will have to be taken only on a complaint filed by the class of persons prescribed by Section 138 and the forum i.e. the Magistrate who shall try it and limitation", there are no other matters prescribed by the N.I. Act and the other concerned statutes shall govern the trial viz. Criminal Procedure Code, Evidence Act, etc.

The third judgment in this category relied upon by the petitioner is A. K. Roy's case (supra), where Lordships of Supreme Court deprecated delegation of power in filing a complaint. The case deals with a case under Section 20(1) of Prevention of Food Adulteration Act. The said section contemplated filing of a complaint by a "person authorised in this behalf by the general or special order by the State Government or the Central Government". The scheme of the Prevention of Food Adulteration Act did not contemplate delegation of powers, not even the Power of Attorneys Act applied there. Therefore, the judgment in A. K. Roy's case has no application or does not serve the purpose of aiding any interpretation while deciding the present case, much less as precedent.

14.(i) Company Cases (Vol. 80) 558, (Madras High Court), K.N. Sankaranarayanan and Anr. v. Shree Consultations and Services Pvt. Ltd. and Ors.;

(ii) 7995 Cri.L.J. 1660, (Madras High Court), M. Thulasidass v. K. Govindaraju;

(iii) 1999(3) Mh.L.J. 397, Raja s/o Dr. S. P. Upadhyay v. State of Maharashtra and Anr.;

(iv) 2003(4) Mh.L.J. 938 = 2003 ALL MR (Cri) 1867, Kishore Shankar Singapurkar v. State of Maharashtra and Anr.

These four judgments cannot be said to have any application to the present case and it would not be of any gain to discuss those.

15. 2001(4) Mh.L.J. (SC) 895 = AIR 2001 SC 3641, Punjab and Sind Bank v. Vinkar Sahakari Bank Ltd. and Ors.

The ratio laid down in this judgment can be summarized as follows :

A pay order payable to a particular payee on a specified banker when assigned to the bank concerned, it become a holder in due course and presumption raised in favour of such Bank to be the holder in due course unless rebutted and a complaint under Section 138 of N.I. Act by such holder in due course is maintainable. The word, "certain person" described in the definition of "Bill of Exchange" would include holder in due course, and filing of a complaint by a "payee or the holder in due course of the cheque, as the case may be" vests right with the holder in due course (in the given case the Bank concerned) who was in possession of the cheque was entitled to recover the amount, was entitled to file the complaint for dishonour under Section 138 of N.I. Act.

16. In reply learned Advocate Shri A.S. Chandurkar advanced his submissions in reply and placed reliance on following judgments;

(i) 2003(2; ALL MR (JOURNAL) 1, RBF Nidhi Ltd. and Anr. v. State of A.P. and Ors. (ii) 2000(Suppl.) Bom.C.R. 325, Pradeep Mahonbay (Dr.) v. Minguel Carlos Dias (Mr.) (iii) 2002(5) Mh.L.J. 433, Finolex Industries Ltd. v. Pravin V. Sheth and Ors. (iv) AIR 2001 SC 567, Pankajbhai Nagjibhai Patel v. State of Gujarat and Anr. (v) 2001(2) ALL MR, (JOURNAL), Nayagam Lourd Prakash v. Standard Chartered Bank, Sec'bad and Anr. (vi) AIR 1998 SC 596, Associated Cement Co. Ltd. v. Keshvanand (vii) (7999) 3 SCC 614, T. C. Mathai and Anr. v. District and Sessions Judge, Thiruvananthapuram, Kerala (viii) 7997 Cri.L.J. 1866, H. Mohan and Anr. v. State of Karnataka (ix) 2005(1) Mh.L.J. 1170, (SC) Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. (x) 2005(1) Mh.L.J. 1179, Sheikh Ahmad Sheikh Chand Mohamad v. Kazi Nasiruddin s/o Kazi Ikramuddin (xi) 2003 All MR (Cri) Journal 105, Avon Organics, Hyd. v. Pioneer Products Ltd. and Ors. (xii) AIR 1986 SC 2160, A.K. Roy and Anr. v. State of Punjab and Ors. (xiii) 77 (2003) BC 173, (A.P. High Court), RBF Nidhi Ltd. and ANR. v. State of A.P. and Ors. (xiv) III (2002) BC 77 (DB) (A.P. High Court), S.P. Sampathy v. Smt. Manju Gupta and Anr.

All these judgments relied upon by Advocate Shri Chandurkar are based on a preposition that;

(i) a dishonoured cheque could be presented on any number of occasion;

(ii) the complaint could be maintainable if filed by power of attorney;

(iii) in the event the statement of complaint is not recorded, it would be a defect of curable nature and shall not by itself entail the result of dismissal of the complaint.

17. After examining the issues brought before this Court, perusal of record and giving careful consideration to the submissions and perusal of precedents which are binding the judgments of coordinate Benches of this Court which should ordinarily be followed, and judgments of other Courts which have persuasive value, the point which needs to be addressed and decided need to be formulated and is so formulated as follows :--

(I) Whether a power of attorney can file a complaint of offence under Section 138 of N. I. Act;

(II) Who shall be the person whose sworn statement or whose examination needs to be recorded before the Magistrate for taking cognizance.

(III) Should recording of the statement by the complainant in person be imperative even in the cases where the complainant has himself not witnessed the transaction, but has since from inception of the transaction deal with through the power of attorney.

18. These questions are now dealt with hereinafter.

The first question as to whether a power of attorney can file a complaint of offence under Section 138 of N. I. Act shall now be dealt with. For enabling to address the points formulated, advertence to certain definitions is necessary, which are quoted below for ready reference.

Section 7. "Payee" -- The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the "payee".

Section 8. "Holder" -- The "holder" of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto.

Section 9. "Holder in due course"-- "Holder in due course" means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or endorsee thereof, if [payable to order], before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.

Section 14. "Negotiation" -- When a promissory note, bill of exchange or cheque is transferred to any person, so as to constitute the person the holder thereof, the instrument is said to be negotiated.

Section 15 - "Endorsement" -- When the maker or holder of a negotiable instrument signs the same, otherwise than as such maker, for the purpose of negotiation on the back or face thereof or on a slip of paper annexed thereto, or so signs for the same purpose a stamped paper intended to be completed as a negotiable instrument, he is said to endorse the same, and is called the "endorser".

Section 27. "Agency" -- Every person capable of binding himself or of being bound, as mentioned in Section 26, may so bind himself or be bound by a duly authorised agent acting in his name.

A general authority to transact business and to receive and discharge debts does not confer upon an agent the power of accepting or endorsing bills of exchange so as to bind his principal.

An authority to draw bills of exchange does not of itself import an authority to endorse.

19. The above definition are quoted in order to have a ready view thereof since the very purpose of utilization of cheque as a bill of exchange is as a mechanism of trade and business has to be kept in mind. Delivery of a cheque stands for payment in cash and it is for this reason its dishonour has been brought into the fold of attracting criminal liability. In the circumstances, as defined and provided by Section 138 of N. I. Act, the person who is entitled for receiving money under any cheque is thus a "payee" or as the case may be, the "holder in due course". "The holder in due course" thus could be any person who becomes the possessor i.e. bearer of a cheque or payee or endorsee thereof whenever the cheque is payable to bearer or payable on the order of payee named in it. Thus a person who comes to possess the instrument i.e. the cheque before the amount mentioned therein becomes payable without having sufficient cause to believe that any defect in the title of person from whom he had derived the title is the person who "owns the instrument" and by virtue of his said ownership, become entitled for the payment. Every such person comes into the eligibility clause describing the person who can file the complaint as described in Clause (a) of Section 142.

20. Thus, while the payee as a person named in the instrument, and when the instrument is payable to bearer or order the person named or a person in whose name the endorsement is made, or even a bearer if endorsement is in blank, becomes entitled to money covered thereby. Thus, if the scheme of N. I Act is read coherently, the idea is of empowering of title holder of the instrument entitled to money named therein to receive money, who in turn ought to be entitled to file the complaint for dishonour under Section 138 read with Section 142 of N. I. Act. Holder of a cheque, which is dishonoured on presentation is the person who is affected or injured, and is entitled to file a complaint under Section 138 read with Section 142 of N. I. Act.

The Negotiable Instrument or a cheque being a part of mechanism or equipment in the trade and business, the identification of person entitled to file the complaint is thus to be by the title thereof, and being a matter of trade and commerce, a person entitled to authorise some other person to act on his behalf should ordinarily be entitled to empower other person to file the complaint. It shall be clear from the definition of "agency" given under Section 27, except the part 2 and 3 of the definition, that every person duly constituted as an agent, can do the acts of making, drawing, accepting, endorsing, delivering and negotiation of a bill of exchange. Thus when an "agent" who is duly authorised even may be based on a power of attorney could be competent can transact relating to all matters relating to Negotiable instruments.

21. The Negotiable Instrument Act is of 1881 and before it came into existence the law governed Powers of Attorney Act namely 39 of Act of 28 of 1866 existed. By the Powers of Attorney Act of 1882, the law as it existed related to execution of power of attorney and conferring of authority came into existence, deals with an instrument titled as power of attorney which is defined as follows :--

"1-A. Definition. -- In this Act, "power-of-attorney" includes any instrument empowering a specified person to act for and in the name of the person executing it.

2. Execution under power-of-attorney -- The donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed or done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.

This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force".

Thus the concept of power of attorney did exists which fortifies due authorization as contemplated by the agency as provided for in Section 27 of N. I. Act. As is already held by this Court by his Lordship Justice R.K. Batta in Pradeep Mohanbay (Dr.) v. Minguel Carols Dias (Mr.) (supra) and as similar view is taken by various other High Court, this Court holds that filing of a complaint by a power of attorney is not just permissible but is competent.

Thus, the power of attorney holder who is duly and properly authorised to do so can file complaint under Section 142 of N. I. Act towards dishonour of cheque for offence under Section 138 thereof in the name of the principal for signing for and on behalf of the principal.

22. The questions namely --

(ii) Who shall be the person whose sworn statement or whose examination needs to be recorded before the Magistrate for taking cognizance.

(iii) Should recording of the statement by the complainant in person be imperative even in the cases where the complainant has himself not witnessed the transaction, but has since from inception of the transaction deal with through the power of attorney and witnessed by General Power of Attorney;

are now to be discussed.

It shall be pertinent to note that as is laid down by the Supreme Court (Coram : K.T. Thomas and R.P. Sethi, JJ) in Pankajbhai Nagjibhai Patel (supra), all that is prescribed by Section 142 is (i) the person who shall file the complaint; (ii) the limitation and (iii) forum, all other matters are left to be governed by Criminal Procedure Code. As it is further held and discussed in detail by this Court by His Lordship J.G. Chitre, J., in the case of Shri Vasant Waman Pradhan (supra) and held in the Division Bench judgment of Kerala High Court delivered by Justice A. R. Lakshmanan as he then was in Harihara Iyer v. State of Kerala, 2001 Bank J. 633, the sworn statement of the complainant is imperative.

23. This imperativeness rather mandatoriness of sworn statement is drawn from Section 200 of Criminal Procedure Code. It provides for examination of the complainant on oath, as well as witnesses present, if any, and upon recording the substance of such examination which shall be signed by the complainant and the witnesses, which condition has been excused if already done by Magistrate making over a case to another, or if the complaint is filed by a public servant.

The purpose and object of recording such examination as is noticed in various reported precedents as is observed by this Court in case of Vasant Waman Pradhan v. Shri Dattatraya Vithal Salvi and Anr., 2004(1) Mh.L.J. 487 = 2003 All. MR (Cri) 2523.

"17. It is pertinent to note that word "examination" has been used in Section 200 of the Code which means that the Magistrate is obliged to put questions to such complainant and to elicit the answers from his. This section enjoins a judicial duty to be performed and it requires application of judicial mind while examining such complainant on oath. The said work is not to be left to the clerk working in such Courts. It is to be noted that when such complainant is examined on oath by Court, he is interrogated for such examination, the truth is very likely to surface because complainant knows that he is being examined on oath by the Magistrate. Generally the complaints are drafted by lawyers or their clerks at the say of the complainant and such formulated conversation is presented before the Magistrate when the complaint is filed. Therefore, in that context also such examination is the best way of surfacing the truth on record. In such examination the complainant in all probability tells the truth and truthful version of the incident which enables the Magistrate to consider by application of judicial mind whether process is to be issued or not."

Further as noted by His Lordship A. R. Lakshmanan as then was in Harihara Iyer's case 2007 Bank J. 633);

"10. The object of such examination is to ascertain whether there is a prima facie case and sufficient ground for proceeding. Thus, in our opinion, section having cast an imperative duty to examine the witnesses as well, he ought to enquire if there are witnesses to be examined."

The object behind recording of statement of complainant and witnesses, if any, is thus for enabling the Judge to surface the truth before his reaching conclusion as to whether to issue process, taking cognizance or otherwise, being justified on facts.

24. Now, therefore, the question which further needs to be dealt with is, in what circumstances the examination of the complainant in 'person alone' i.e. in exclusion to the power of attorney would be necessary. It shall ordinarily be needless, however, in the circumstances, it is necessary to refer and hence felt necessary to discuss certain provisions of Indian Evidence Act, 1882. The statement of the complainant is to be recorded by the Magistrate and such other witnesses is for having on record the legal evidence on the basis of which the complaint is made and the Court is called upon to exercise the jurisdiction and to put the law into motion. Under Section 118 of the Evidence Act as to the competence of the person to testify what is required is as clear from Section 118, which is quoted below for ready reference.

118. Who may testify. -- All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Explanation -- A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.

25. Thus, any person who answers the test laid down in Section 118 shall be competent to testify, however said test alone is not the test as to who shall be a witness. It needs to be noted that the facts are to be proved by primary evidence as defined under Section 62 of the Evidence Act, as far as documentary evidence is concerned. While as far as oral evidence is concerned, it has to be by direct evidence under Sections 59 and 60 thereof. It is, therefore, considered necessary to quote Section 60 of Evidence Act for its ready reference :--

"60. Oral evidence must be direct. -- Oral evidence must, in all cases whatever, be direct; that is to say --

If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds .............."

It shall thus be clear that whenever any fact to be proved is in relation to oral as well as documentary evidence, and the proof of facts is to be by direct evidence.

26. Now the point to be addressed is how and in what manner the facts stated in the complaint towards dishonour of cheque under Section 138 should be proved at the stage of issue of process and even on merits. What follows is as follows :--

(a) that whenever on the statements contained in the complaint, if the payee or holder in due course who is the complainant and on the basis of the statement contained in the complaint is himself has witnessed of part or full transaction which has led to the receiving of the cheque and its dishonour, the complainant alone should be the witness of the complaint.

(b) If there are some transactions or part of transactions witnessed by some other person including by a person who is power of attorney, in an eventuality where part of the transactions are witnessed by another person including the power of attorney, in such cases the complainant and such other person including the power of attorney could be the witness. In such eventualities, the power of attorney who may file a complaint for and on behalf of the complainant has to appear in his capacity as witness and not as a power of attorney.

(c) In the case of transactions, where depending upon what is disclosed in the complaint, if all transactions are undertaken by the power of attorney in total exclusion of the payee or the holder in due course i.e. title holder of such cheque, in such eventuality, the power of attorney holder in addition to his capacity to file the complaint on the basis of power of attorney, alone has to be the witness in place of complainant apart from other witnesses if involved in the transactions. Thus, power of attorney himself being a witness right from the inception in the transaction, and if such statement is incorporated in the complaint, the statement contemplated by Section 200 has to be recorded by the power of attorney for and on behalf of the complainant while doing so he does it duly as GPA and as a witness which positions are inseparable.

27. One more aspect needs advertence of the Court, namely - Section 145 of N. I. Act which authorises evidence of the complainant to be given on affidavit and even attaches presumptive value to the bank's slip indicating dishonour of cheque. These sections are quoted below for ready reference;

145. Evidence on affidavit. -- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.

146. Bank's slip prima facie evidence of certain facts. -- The Courts shall, in respect of every proceeding under this chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disapproved.

Above quoted sections which have been introduced by amendment in the N. I. Act by Act No. 55 of 2002, brings in an overriding effect to what is provided in Criminal Procedure Code. For testing the truth and surfacing the fact which is the object of sworn statement of the complainant or evidence of the complainant and the witnesses, as contemplated by Section 200 of Criminal Procedure Code, the procedure prescribed would enable the Judge to act on the basis of affidavit of the complainant and the bank slip then filed in the Court along with the complaint. Sections 145 and 146 would thus even dispense with the recording of evidence of the complainant as contemplated by Section 200 of Criminal Procedure Code. It, however, would be open to the discretion of the judge to put questions to the complainant if he considers it necessary.

28. Thus the requirement of recording of statement of the complainant thus stand substantially dispensed with by virtue of Section 145 of N. I. Act and even on account of failure to record the statement of the complainant the dismissal of the complaint at the threshold would not be permissible as the affidavit of the complainant can be filed.

29. The conclusions which this Court arrived at are as follows :--

(i)      filing of complaint by such person through power of attorney would be perfectly legal and competent.
 

(ii)    that the complainant alone being a witness of transaction has himself to depose in support of complaint either at the stage of issuance of process or whenever.
 

(iii)   If the transactions are witnessed by the power of attorney himself as an agent of the payee, such power of attorney alone can be a witness and his being a power of attorney cannot disentitle him from being a witness.
 

(iv)    When the transactions are witnessed by the complainant and power of attorney or any other witness or witnesses in the whole or in part, all such persons will have to be the witness of the case, and the power of attorney shall not be disentitled from being examined as witness just because he holds a power of attorney.
 

30. In view of the conclusions reached by this Court narrated in forgoing para, the foundation of present petition is based on an objection that the power of attorney cannot be a witness even though as narrated in the complaint that he is the person who had conducted all transactions, looses all ground whatsoever.

31. The petition does not call for any interference. Rule is accordingly discharged.