Calcutta High Court (Appellete Side)
Mr. Bimal Singh Sethia vs Mr. Ashok Bengani on 11 November, 2022
IN THE HIGH COURT AT CALCUTTA
(CRIMINAL APPELLATE JURISDICTION)
PRESENT:
THE HON'BLE JUSTICE SIDDHARTHA ROY CHOWDHURY
CRA 564 of 2019
MR. BIMAL SINGH SETHIA
VS.
MR. ASHOK BENGANI
For the Appellant : Mr. Debrup Bhattacharyya, Adv.
Mr. Tirthankar Dey, Adv.
For the Respondent : Mr. Uday S. Chatterjee, Adv.
Hearing concluded on : 11th November, 2022
Judgement on : 11th November, 2022
Siddhartha Roy Chowdhury, J.:
1. This is an appeal preferred under Section 378(4) of the Code of
Criminal Procedure assailing the judgement and order of acquittal
passed by the learned 4th Court of Metropolitan Magistrate in
Complaint Case No. 843 of 2013 on 28.4.2017.
2. Briefly stated, one Mr. Bimal Singha Sethia filed a petition of
complaint under Section 138 of the N.I. Act through Sri Prosenjit Das,
holder of general Power of Attorney executed by the complainant
contending inter alia that Mr. Ashok Bengani approached the
complainant for a temporary accommodation of loan to the tune of
Rs.3 lakhs which was acceded to and the complainant issued an
account payee cheque vide No. 010854 dated 17.6.2010 drawn on
Hong King & Shanghai Bank Corporation Ltd., Shakespeare Sarani
Branch. The said cheque was duly encashed by the accused person.
On 01.6.2013 the accused person in discharge of his obligation to
repay the said loan issued an account payee cheque vide no. 000248
dated 01.6.2013 for a sum of Rs.3 lakhs drawn on Bank of India,
Burrabazar Branch, Kolkata in favour of Mr. Bimal Singh Sethia with
an understanding that the said cheque would be deposited on or after
20.8.2013. Accordingly, the complainant presented the cheque but it
was dishonoured for insufficient fund. The intimation in this regard
was received by the complainant on 27.8.2013 and on 16.9.2013 the
complainant, through his advocate sent a demand notice dated
14.9.2013 through speed post with acknowledgement due, calling
upon the drawee of the cheque to pay a sum of Rs. 3 lakhs which is
equivalent to the cheque amount. The said notice was received by Mr.
Ashok Bengani on 18.9.2013 but it was not complied with. Hence the
petition of complaint was filed on 31.10.2013 before the learned Chief
Metropolitan Magistrate, Kolkata which was transferred to the learned
4th Court of Metropolitan Magistrate for disposal.
3. After complying with the provision of Section 200 of Code of
Criminal Procedure, learned 4th Metropolitan Magistrate was pleased
to issue process under Section 138 of the N.I. Act upon the accused
person and the accused persons surrendered to the jurisdiction of the
learned Trial Court. During trial Sri Prosenjit Das, the general Power
of Attorney Holder and the representative of the complainant adduced
evidence as P.W. 1. Thereafter, no other witness was examined and
the accused person was examined under Section 313 of the Cr.P.C.
4. Learned Trial Court, however, disposed of the petition of complaint
with an order of acquittal holding inter alia that the complainant
since did not file the petition of complaint by himself and decided not
to appear before the Court to adduce evidence, his representative
being the holder of general of Power of Attorney cannot maintain the
prosecution under Section 138 of the N.I. Act. According to learned
Trial Court the holder of dishonoured cheque himself ought to have
appeared before the Court personally to adduce evidence. While
passing the impugned judgement, learned Trial Court placed his
reliance upon the judgement of a co-ordinate Bench of this Court
pronounced in case of Prasanta Kumar Basu vs. Narandra Kumar
Anchalia & Anr. reported in (2007) 1 C Cr.LR(Cal) 136.
5. Aggrieved by and dissatisfied with such judgment and order of
acquittal the complainant has preferred this appeal.
6. Assailing the impugned judgement, learned counsel for the
appellant Mr. Debrup Bhattacharyya submits that learned Trial Court
adopted a short cut method to dispose of the complaint case without
applying the judicial mind. According to Mr. Bhattacharyya a general
Power of Attorney holder is competent to maintain the prosecution
under Section 138 of the N.I. Act and such right has been recognized
by the Hon'ble Apex Court. To buttress his point Mr. Bhattacharyya
relied upon the decision of the Hon'ble Supreme Court pronounced in
the case of A.C. NARAYANAN VS. STATE OF MAHARASHTRA &
ANR. reported in (2014)11 SCC 790. It is held by Hon'ble Apex Court
at paragraphs 28 and 31 are as under:
"28. The power of attorney holder is the agent of the grantor.
When the grantor authorizes the attorney holder to initiate
legal proceedings and the attorney holder accordingly initiates
such legal proceedings, he does so as the agent of the grantor
and the initiation is by the grantor represented by his
attorney holder and not by the attorney holder in his personal
capacity. Therefore, where the payee is a proprietary concern,
the complaint can be filed by the proprietor of the proprietary
concern, describing himself as the sole proprietor of the payee,
the proprietary concern, describing itself as a sole proprietary
concern, represented by its sole proprietor, and the proprietor
or the proprietary concern represented by the attorney holder
under a power of attorney executed by the sole proprietor.
However, we make it clear that the power of attorney holder
cannot file a complaint in his own name as if he was the
complainant. In other words, he can initiate criminal
proceedings on behalf of the principal.
31. In view of the discussion, we are of the opinion that the
attorney holder cannot file a complaint in his own name as if
he was the complainant, but he can initiate criminal
proceedings on behalf of his principal. We also reiterate that
where the payee is a proprietary concern, the complaint can
be filed:
(i) by the proprietor of the proprietary concern,
describing himself as the sole proprietor of the "payee";
(ii) the proprietary concern, describing itself as a sole
proprietary concern, represented by its sole proprietor;
and
(iii) the proprietor or the proprietary concern represented
by the attorney holder under a power of attorney
executed by the sole proprietor."
7. It is further adverted by Mr. Bhattacharyya that the judgement of
Prasanta Kr. Basu (supra) was passed taking lumen from a
judgement of Andhra Pradesh High Court, in the backdrop of a
different factual matrix and learned Trial Court failed to appreciate
the judgement of Prasanta Kr. Basu (supra) in its proper perspective.
8. Mr. Uday S. Chatterjee, learned counsel appearing on behalf of the
respondent supporting the impugned judgement submits that learned
Trial Court was absolutely justified in passing the impugned
judgement. It is settled principle of law that when two views are
possible the one that tilts in favour of the accused person should be
accepted and while sitting on an appeal against an order of acquittal
the appellate Court may not overturn the judgement of acquittal
unless the judgment impugned appears to be perverse. In support of
his argument Mr. Chatterjee placed reliance upon the decision of
Hon'ble Apex Curt pronounced in the case of C. Antony vs. K.G.
Raghavan Nair reported in 2003 CRI. L. J. 411. It is further argued
that views of the learned Trial Judge as to the credibility of the
witnesses, presumption of innocence in favour of the accused, right of
the accused to the benefit of any doubt should always be given due
consideration while considering an appeal against the order of
acquittal. Mr. Chatterjee relied upon a decision of Hon'ble Supreme
Court given in Ghurey Lal vs. State of Uttar Pradesh reported in
(2008) 10 Supreme Court Cases 450 to buttress his argument.
9. The argument of Mr. Chatterjee on the role of the Appellate Court
sitting on appeal against an order of acquittal cannot be ignored
rather Mr. Chatterjee makes this Court revisit the well settled
principle of law. But as a matter of fact in the impugned judgement
learned Trial Court did not discuss any evidence to record an order of
acquittal. On contrary learned Trial Court held that the petition of
complaint since was filed by a Power of Attorney holder though in the
name of the complainant and the complainant since decided to keep
himself away from the witness box the petition of complaint cannot be
said to be maintainable. This view of learned Trial Court, in my
humble opinion is quite contrary to the view expressed by Hon'ble
Supreme Court in the case of A.C. Narayanan (supra).
10. In the case of Prasanta Kumar Basu vs. Narendra Kumar Anchalia
& Anr. reported in 2006 SCC Cal 622 the petition of complaint was
filed not in the name of the complainant but in the name of general
Power of Attorney holder who filed the petition of complaint as an
authorized agent of the firm L.M. Enterprises where he used to work
for gain as manager. In this case at hand the petition of complaint
has been filed in the name of complainant by his authorized agent
and holder of general Power of Attorney.
11. In my humble opinion the impugned judgement is utterly perverse
and should not be allowed remain in force and should be set aside
which I accordingly do.
12. It is a fit case to invoke the provision laid down under Section 391
of Cr.P.C. to remit the case to the learned Trial Court with a direction
to write judgment afresh taking into consideration the evidence
already on record and dispose of the case within six months from the
date of receipt of this order. However, liberty may be given to the
parties to adduce evidence if prayer is made therefor.
13. The Criminal Appeal is thus allowed.
14. The impugned judgement passed by the learned Trial Court is set
aside.
15. The lower Court record be sent down to the learned Trial Court
together with copy of this order for information and necessary action.
16. The parties shall act upon the server copy duly downloaded from
the official website of this Court.
17. Urgent Photostat certified copy of this judgement, if applied for, be
supplied to the parties, upon completion of requisite formalities.
(SIDDHARTHA ROY CHOWDHURY, J.)
