Delhi High Court
Sushila Badola vs Tushar Patni on 21 October, 2024
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 21.10.2024
+ CRL.M.C. 4453/2019 & CRL.M.A. 35165/2019
SUSHILA BADOLA ..... Petitioner
versus
TUSHAR PATNI ..... Respondent
+ CRL.M.C. 4885/2019 & CRL.M.A. 36875/2019
SUSHILA BADOLA ..... Petitioner
versus
TUSHAR PATNI ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Madhav Khurana, Mr. Nishaank
Mattoo, Mr. I.K. Dubey, Mr. Risabh
Munjal and Ms. Sanjivani Patt Joshi,
Advocates
For the Respondent : Mr. Alok Kumar Pandey and Ms.Muskaan
Dewan, Advocates
CORAM
HON'BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present petitions are filed against the order dated
08.01.2019 (hereafter 'impugned orders') passed by the learned
Metropolitan Magistrate, NI Act, Karkardooma Courts whereby notice
under Section 251 of the Code of Criminal Procedure, 1973 ('CrPC')
was framed against the petitioner in CC Nos. 47151/2016 and
47152/2016 under Section 138 of the Negotiable Instruments Act,
1881 ('NI Act').
2. Complaint under Section 138 of the NI Act was filed by the
respondent alleging that he had advanced a friendly loan for a sum of
₹2 crores on the assurance of the petitioner that the same would be
returned after the expiry of 6 months. It is alleged that post the expiry
of 6 months, despite numerous requests and demands, the petitioner
failed to return the said amount. It is alleged that thereafter the
petitioner issued a duly signed cheque dated 04.10.2007 for a sum of
₹2 crores in discharge of the debt, and had also allegedly assured that
the same would be honored on presentation. It is alleged that the said
cheque on presentation was returned back with the remark
"Insufficient funds." It is alleged that thereafter, a legal notice was
sent, and upon the subsequent non-payment of the loan amount, the
respondent through a power of attorney, filed a complaint under
Section 138 of the NI Act.
3. It is stated that after the receipt of summons, and during the
pendency of that complaint being CC No. 2675/01/07 for the alleged
dishonour of the cheque issued by the petitioner for a sum of ₹2
crores, a compromise deed dated 15.11.2008 was allegedly executed
between the petitioner and respondent through his authorized
representative, whereby the petitioner had allegedly undertaken to
return ₹3 crores to the respondent as full and final settlement.
Consequently, the respondent had withdrawn the earlier complaint
being CC No. 2675/01/07 in view of the compromise deed entered
into between the parties.
4. It is alleged that pursuant to the compromise deed, four cheques
each for a sum of ₹75,00,000/- bearing nos. 200451, 200452, 200453,
and 200454 were advanced by the petitioner. The proceedings qua the
first cheque no. 200451 were quashed by this Court vide order dated
22.01.2015. This Court, on that occasion, noted that the learned Trial
Court committed an error in proceeding with a private complaint filed
by Power of Attorney on the strength of the Special Power of Attorney
which was not attested by the Indian Embassy at Abu Dhabi, UAE.
5. It was noted that the Special Power of Attorney in the absence
of valid attestation by the requisite authority lacked authentication. It
was noted further that the learned Trial Court, framing notice under
Section 251 of the CrPC, and asking the petitioner to face trial without
valid authority, is contrary to the provision of Section 145 of the NI
Act and Section 200 of the CrPC since there was no valid Power of
Attorney before the court when the order dated 06.04.2010 framing
notice was passed. It was noted that the learned Trial Court failed to
consider that in the pre/post summoning evidence, the Power of
Attorney did not claim that he had personal knowledge of the
transaction in question. It was noted that the pre-summoning evidence
of the complainant under Section 200 of the CrPC was given by the
Power of Attorney by way of Affidavit on behalf of the complainant.
It was noted that the complainant was not examined on oath in
accordance with Section 145 of the NI Act. It was further noted that
even at the post-summoning stage, the learned Trial Court had not
considered that Power of Attorney holder is not entitled to give
evidence on affidavit under Section 145 of the NI Act on behalf of the
complainant, and that the complainant failed to take the permission of
the Court under Section 302(2) of the CrPC for prosecuting the case
through attorney.
6. It was noted that the learned Trial Court did not appreciate how
the amount of ₹2 crore had been given to the petitioner in cash, since
the petitioner claimed that she never met the respondent. In that light,
it was noted that the framing of notice and putting up the matter for
complainant's evidence through attorney where the attorney had no
personal knowledge about the transaction, was without application of
mind. This Court, however, noted that the respondent is entitled to
recover the friendly loan from the petitioner by way of filing of
criminal complaint or civil suit, and that the respondent may initiate
the same in accordance with law and even through valid Power of
Attorney. In the light of the aforesaid, the proceedings qua the first
cheque bearing no. 200451 were quashed by this Court vide order
dated 22.01.2015.
7. The present proceedings stem from the alleged dishonour of the
second and the third cheque bearing nos. 200452, and 200453 dated
01.03.2010 and 01.06.2010 respectively, each for a sum of
₹75,00,000/- allegedly advanced by the petitioner in accordance with
the compromise deed dated 15.11.2008. It is the case of the
complainant that the subject cheques were presented for encashment
by the complainant which returned back unpaid by the bankers with
the remarks "Stop by the drawer." It is alleged that thereafter legal
notices were sent to the petitioner in respect of cheque no. 200452 on
21.09.2010, and cheque no. 200453 on 27.12.2010 through Speed
Post/UPC/Courier and the petitioner despite the alleged service of
notice, failed to make the payment in respect of the subject cheques
within the statutory period of 15 days, which culminated into the
present complaints under Section 138 of the NI Act.
8. The learned counsel for the petitioner submitted that the
petitioner has been falsely implicated in the present case. He
submitted that the petitioner is not acquainted with the respondent or
any transactions as alleged by the respondent. He submitted that the
present proceedings constitute a second round of litigation between
the parties in respect of the subject cheques. He submitted that the first
round of litigation was filed on 27.11.2007 by Sh. Prasant Mamgain
authorized by the Power of Attorney dated 18.11.2007 which was an
invalid document since the same was not attested by the Indian
Embassy.
9. He placed reliance on the judgment of the Hon'ble Apex Court
in A.C. Narayanan & Ors. vs. State of Maharashtra : (2015) 12 SCC
203 to contend that the power of attorney holder can only appear,
plead and act on behalf of the party, and not depose as a witness on
behalf of the executor of Power of Attorney. He submitted that even
otherwise, the power of attorney must have personal knowledge of the
transaction to give evidence. He submitted that in the present case the
respondent is relying upon the Power of Attorney dated 07.09.2010
and the same does not mention that the power of attorney has personal
knowledge of the case or the alleged transaction. He consequently
submitted that the authorized representative could not have tendered
an affidavit by way of evidence, and further submitted that the
proceedings before the learned Trial Court including the order framing
notice under Section 251 of the CrPC is void.
10. He submitted that the pre-summoning evidence by the
authorized representative does not mention the mode in which the loan
amount was advanced, or the place or time in which the alleged
transaction took place. He submitted that the same does not even state
that the authorized representative had witnessed the alleged
transaction.
11. He submitted that the power of attorney has been executed only
for the purposes of filing the complaint, and Sh. Prashant Mamgain is
not privy to the details of the alleged transaction since the subject
cheques are dated after the execution of the power of attorney. He
submitted that even otherwise, the power of attorney does not state
that the attorney is authorized to tender on behalf of the respondent.
12. He submitted that the compromise deed is a fabricated
document, and even if the same is taken at face value still the
compromise deed itself restricts the respondent from initiating fresh
proceedings, and instead provides for revival of complaint no.
2675/1/2007 should there be any breach. He submitted that, in any
event, the alleged compromise dated 15.11.2008 was itself entered
into on the strength of the power of attorney dated 18.11.2007 which
was an invalid document because the same was not duly attested by
the Indian Embassy. He further submitted that the complainant failed
to take permission from the Court under Section 302(2) of the CrPC
for prosecuting the case through attorney, and consequently submitted
that the entire proceedings before the learned Trial Court are illegal.
13. The learned counsel for the respondent submitted that this Court
while quashing the complaint case no. 21/10, qua the first cheque vide
order dated 22.01.2015, did not go into the merits of the case. He
submitted that on that occasion the complaint was quashed merely due
to the non-existence of a valid authorization. He submitted that this
Court while quashing the complaint granted liberty to the respondent
to recover the loan amount by filing criminal complaint through valid
power of attorney in accordance with law.
14. He submitted that the respondent through his valid Power of
Attorney deposited the second and third cheque of ₹75 lakhs each,
which too, on presentation, were dishonored. He submitted that
consequently the subject complaints were filed under Section 138 of
the NI Act. He submitted that the complaint cases were filed through
valid authorization duly attested through the Indian Embassy in UAE
stating that the authorized representative had personal knowledge
regarding the facts of the case. He submitted that the same was also
mentioned in the complaint case, and the pre-summoning evidence
under Section 138 of the NI Act. He submitted that the compromise
deed dated 15.11.2008 executed between the petitioner and the
respondent had been challenged by the petitioner, and the said petition
was dismissed by this Court vide order dated 08.05.2019.
15. He submitted that while issuing summons, the Court has to only
see whether a prima facie case has been made out against the accused
under Section 138 of the NI Act.
Analysis
16. The petitioner has approached this Court under Section 482 read
with Section 483 of the CrPC seeking quashing of the impugned
orders and the complaint proceedings in criminal complaints bearing
CC Nos. 47151/2016 and 47152/2016. At the outset, it is relevant to
note that this Court can quash complaints under the NI Act at the pre-
trial stage in the exercise of its inherent jurisdiction under Section 482
of the CrPC if such unimpeachable material is brought forth by the
accused persons which indicates that they were not concerned with the
issuance of the cheques or that no offence is made out from the
admitted facts. The Hon'ble Apex Court in the case of Rathish Babu
Unnikrishnan v. State (NCT of Delhi) : 2022 SCC OnLine SC 513
had discussed the scope of interference by the High Court against the
issuance of process under the NI Act as under:
"8. The issue to be answered here is whether summons and trial
notice should have been quashed on the basis of factual defences.
The corollary therefrom is what should be the responsibility of the
quashing Court and whether it must weigh the evidence presented
by the parties, at a pre-trial stage.
xxxx xxxx xxxx
16. The proposition of law as set out above makes it abundantly
clear that the Court should be slow to grant the relief of quashing
a complaint at a pre-trial stage, when the factual controversy is in
the realm of possibility particularly because of the legal
presumption, as in this matter. What is also of note is that the
factual defence without having to adduce any evidence need to be
of an unimpeachable quality, so as to altogether disprove the
allegations made in the complaint.
17. The consequences of scuttling the criminal process at a
pretrial stage can be grave and irreparable. Quashing
proceedings at preliminary stages will result in finality without
the parties having had an opportunity to adduce evidence and the
consequence then is that the proper forum i.e., the trial Court is
ousted from weighing the material evidence. If this is allowed, the
accused may be given an un-merited advantage in the criminal
process. Also because of the legal presumption, when the cheque
and the signature are not disputed by the appellant, the balance of
convenience at this stage is in favour of the
complainant/prosecution, as the accused will have due opportunity
to adduce defence evidence during the trial, to rebut the
presumption.
18. Situated thus, to non-suit the complainant, at the stage of the
summoning order, when the factual controversy is yet to be
canvassed and considered by the trial court will not in our opinion
be judicious. Based upon a prima facie impression, an element of
criminality cannot entirely be ruled out here subject to the
determination by the trial Court. Therefore, when the proceedings
are at a nascent stage, scuttling of the criminal process is not
merited."
(emphasis supplied)
17. In line with the dictum of the Hon'ble Apex Court in Rathish
Babu Unnikrishnan v. State (NCT of Delhi) (supra), thus, while
exercising the power under Section 482 of the CrPC to quash a
complaint at the pre-trial stage, it is pertinent for this Court to examine
whether the factual defence is of such impeachable nature that the
entire allegations made in the complaint is disproved.
18. The main thrust of the petitioner's argument is that since the
authorized representative did not have personal knowledge of the
alleged transaction, he does not possess the power to tender an
affidavit by way of evidence, and the proceedings before the learned
Trial Court including the summoning order/ the order of framing
notice under Section 251 of the CrPC are illegal. Much emphasis has
been placed by the petitioner on the fact that the Power of Attorney
holder can only appear, plead, and act on behalf of a party. Reliance
has been placed on the case of A.C. Narayanan (supra) to argue that
the power of attorney holder cannot depose as a witness on behalf of
the executor of power of attorney. It has been argued that if the power
of attorney holder has rendered some acts pursuant to a power of
attorney, then he may depose for the principal in regard to such acts,
however, he cannot depose for the principal for the acts done by the
principal and not him. It is argued that the power of attorney does not
mention that the attorney has personal knowledge of the case, and that
the pre-summoning evidence of the attorney does not state the attorney
has himself witnessed the alleged transaction or not.
19. It is pertinent to mention that the Hon'ble Apex Court in the
case of A.C. Narayanan (supra) clarified the position with respect to
the power of the holder of the power of attorney to pursue a complaint
under Section 138 of the NI Act. The Hon'ble Apex Court observed as
under:
"33.1. Filing of complaint petition under Section 138 of the NI Act
through power of attorney is perfectly legal and competent.
33.2. 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.
33.3. 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.
33.4. In the light of Section 145 of the NI 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 NI 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 NI Act.
33.5. 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."
20. The position with respect to the power of the holder of power of
attorney in initiating a criminal complaint is no longer res integra. In
line with the dictum of the Hon'ble Apex Court in A.C. Narayanan
(supra), the power of attorney is competent to file a complaint petition
under Section 138 of the NI Act. Further the power of attorney can
depose and verify on oath so as to prove the contents of the complaint.
The requisite, however, is that the power of attorney holder must
either have witnessed the transaction or possess due knowledge
regarding the said transactions. The complainant however has to
makes a specific assertion regarding the knowledge of the power of
attorney holder in the transaction in the said complaint. It is the
petitioner's case that the power of attorney holder does not mention
how the authorized representative has knowledge of the said
transaction or that he is being appointed in his capacity as such
because he has personal knowledge of the case or the transaction.
21. From a perusal of the complaint, it transpires that the complaint
mentions that the authorized representative is fully competent to file
and sign the complaint and is competent to file evidence by way of
affidavit, and do all other acts to pursue the case. The complaint also
mentions that attorney possessed personal knowledge of the case.
Further, as was noted by the learned MM, the pre summoning
evidence by way of affidavit also states that the attorney possessed
personal knowledge about the transaction and the facts of the case.
22. The petitioner has further relied upon the order of the learned
MM dated 16.09.2019 where the application filed under Section 209
of the IPC read with Section 340 of the CrPC filed by the petitioner
was disposed of. It was argued that the learned MM also noted that
merely mentioning a single line that the authorized representative had
personal knowledge of the case does not conclude that the person
possessed personal knowledge. The authorized representative was
consequently directed to file a fresh affidavit by making a clarification
as to how he gained personal knowledge of the facts of the case. It was
noted that in case the authorized representative failed to clarify or did
not possess personal knowledge, he cannot depose on behalf of the
complainant, and the complainant itself has to stand in the witness box
and examine.
23. During the pendency of the present proceedings, the petitioner
had preferred a revision petition before the learned Appellate Court,
who vide order dated 21.04.2022, allowed the revision petition and set
aside the direction given by the learned MM to the authorized
representative of the complainant to file a fresh affidavit. The learned
Appellate Court noted that the opportunity to file a 'fresh' affidavit
could not have been given without affording any opportunity of
hearing to the petitioner on the said aspect. The learned counsel for the
petitioner contended that the said order has not been challenged by the
respondent, and the same has attained finality.
24. The learned counsel for the petitioner essentially relies upon the
order dated 16.09.2019 passed by the learned MM, and the order dated
21.04.2022 passed by the learned Appellate Court to contend that
since the petitioner was summoned on the basis of pre-summoning
evidence by way of affidavit by the authorized representative which
merely stated that the authorized representative possessed personal
knowledge of the facts of the case and not what knowledge, and the
learned MM itself vide order date 16.09.2019 noted that merely stating
personal knowledge is not enough, the summons issued to the
petitioner was invalid.
25. It is thus pertinent to note that the only short point for
determination by this Court is whether merely stating that the
authorized representative has personal knowledge of the transaction,
and not stating how the authorized representative has personal
knowledge of the said transaction is sufficient compliance of the
dictum of the Hon'ble Apex Court in A.C. Narayanan (supra). For
the determination of the said question, reliance may be placed on the
decision of the Hon'ble Apex Court in TRL Krosaki Refractories Ltd.
v. SMS Asia (P) Ltd : (2022) 7 SCC 612. The Hon'ble Apex Court,
while dealing with a similar question in respect of an authorized
representative on behalf of a company observed as under:
"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 the NI Act, the complainant necessarily
should be the company which would be represented by an
employee who is authorised. Prima facie, 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 authorised 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 [A.C. Narayanan v. State of Maharashtra,
(2014) 11 SCC 790 : (2014) 4 SCC (Civ) 343] 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 authorised 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 authorised 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. [Samrat Shipping Co. (P) Ltd. v. Dolly George, (2002) 9 SCC
455 : 2003 SCC (Cri) 1224] , 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."
26. In line with the dictum of the Hon'ble Apex Court in TRL
Krosaki Refractories Ltd. (supra), there is no specific manner in
which the averment regarding personal knowledge of the transaction
ought to be made in the complaint. In the event that the person
prosecuting the complaint is different from the 'payee', all that is
required to be demonstrated is that the authorization, and the contents
of the complaint are within his knowledge. It is further the position
that if at all there is any serious dispute with regard to the person filing
the complaint not having personal knowledge of the transaction, the
same is open to be disputed by the accused during the course of trial.
While this Court is cognizant that such an observation was made with
regard to an authorized representative on behalf of a company, the
position is not stated to be different in case of a private complaint.
27. The learned counsel for the petitioner also contended that since
the petitioner was summoned on the basis of pre-summoning evidence
by way of affidavit by the authorized representative which merely
stated that the authorized representative possessed personal knowledge
of the facts of the case and not what knowledge, and the learned MM
itself vide order date 16.09.2019 noted that merely stating personal
knowledge is not enough, the summons issued to the petitioner was
invalid. It is argued that order dated 16.09.2019 to the extent that it
allowed the authorized representative to file a fresh affidavit
demonstrating his personal knowledge has also been set aside by the
learned Appellate Court.
28. In the present case from a perusal of the complaint and the pre-
summoning evidence, it is evident that the same contains an averment
that the authorized representative does possess personal knowledge of
the alleged transaction. The degree of knowledge or whether the
authorized representative even possess any personal knowledge with
regard to the alleged transaction as alleged by the petitioner is a
subject matter of trial and cannot be looked into at this stage to quash
the complaint and framing of notice under Section 251 of the CrPC.
Merely because the complaint, or the pre-summoning evidence by way
of affidavit does not detail what knowledge or the extent of knowledge
possessed by the authorized representative, this Court does not deem it
expedient to quash the complaint and notice under Section 251 of the
CrPC, especially on the ground of extent of knowledge of the
authorized representative. The same is a subject matter of trial and
cannot be looked into at this stage. The learned MM after giving the
accused an opportunity to be heard may to its satisfaction determine
whether the attorney possessed personal knowledge of the said
transaction. At the pre-summoning stage, the learned MM only ought
to be satisfied whether there exists a prima facie against the petitioner.
29. The learned counsel for the petitioner has also challenged the
maintainability of the complaint on the strength of the alleged
compromise deed dated 15.11.2008. It is argued that the alleged
compromise deed is a fabricated document. It is pointed out that the
petitioner had also challenged the validity of the compromise deed
dated 15.11.2008 before this Court, and the challenge was rejected
vide order dated 08.05.2019. It was noted that the challenge if any to
the compromise deed filed in a Court even if it is exercising
jurisdiction under the NI Act and the Code of Criminal Procedure,
1973 would lie in that Court only wherein the proceedings culminated
into accepting the compromise, and not before any other Court in
consonance with the principle under Order XXIII Rule 3 of the Code
of Civil Procedure, 1908. It was noted that the jurisdiction to enter into
the legality of the proceedings before it would be of the same Court in
which the compromise under challenge was filed. It was noted that
only if any remedy is preferred against the order of that Court would
this Court as Appellate/Revisional or Writ Court have jurisdiction to
go into the findings of that Court. It was noted that placing the
compromise before a complaint court cannot be an act of empty
formality especially when the Court has acted upon the same, and
permitted the complaint to be withdrawn. In that light, it was noted
that in the event that the petitioner approached the complaint court,
and the complaint court found merit in the challenge, the complaint
court would be entitled to set aside the compromise deed. The
challenge to the validity of the compromise deed would be decided
after the evidence is lead by the parties and cannot be commented
upon at this stage and this Court does not deem it apposite to comment
or consequently quash the present petition on such ground.
30. Much emphasis has also been placed on the fact that the
proceedings qua the first cheque have already been quashed by this
Court vide order dated 22.01.2015, and that this is the second round of
litigation between the parties in respect of the same proceeding. It is
pertinent to mention that the complaint proceedings qua the first
cheque was quashed noting the learned Trial Court proceeded with a
private complaint filed by the Power of Attorney on the strength of
Special Power of Attorney which is not attested by the Indian
Embassy at Abu Dhabi, UAE. It was noted that the complaint
instituted by the attorney would not be maintainable in the absence of
authentication. In the present case, however, the learned MM vide
order dated 16.09.2019, noted that the GPA placed on record by the
authorized representative is executed by the respondent in favour of
the authorized representative. It was noted that the GPA revealed that
the authorized representative has been duly authorized by the
respondent to file any case against the accused, and the same was also
duly attested by the Indian Embassy on 07.09.2010. In that light, it
was rightly noted that had the GPA not been attested by the Indian
Embassy or the same had been executed and attested after the filing of
the complaints, the same would not have been maintainable.
31. It is pertinent to mention that the petitioner has approached this
Court under Section 482 of the CrPC. While it trite that the power of
this Court under Section 482 of the CrPC is wide, and may be
exercised to quash a complaint even at the pre-trial stage, the same
ought to be exercised only if the factual defence of the petitioner is of
such nature so as to disprove the allegations levelled in the complaint.
In the present case, while the petitioner has raised questions regarding
the incapability of the attorney to file the complaint, or lead pre-
summoning evidence on the strength of the Power of Attorney, or the
maintainability of the complaint on the basis of a fabricated
compromise deed, the same is not impeachable in nature and does not
disprove the allegations levelled against the petitioner in the
complaint. Such questions can well be determined by the learned MM
during the course of trial. The learned MM would arrive at a decision
after considering the allegations, and counter allegations raised by the
parties, and considering the evidence on record.
32. This Court finds that the petitioner has, at best, raised questions
of fact mixed with law which cannot be examined by this Court while
exercising jurisdiction under Section 482 of the CrPC since it is
expedient that the same be left to be adjudicated at the stage of trial
when the parties have led their evidence.
33. The present petitions are accordingly dismissed.
AMIT MAHAJAN, J
OCTOBER 21, 2024
