S.K Chhabada vs Sitash Gupta
2022 Latest Caselaw 4599 MP

                                     1
              IN THE HIGH COURT OF MADHYA PRADESH
                           AT JABALPUR
                                  BEFORE
                   HON'BLE SHRI JUSTICE ATUL SREEDHARAN
                           ON THE 31st OF MARCH, 2022

                 MISC. CRIMINAL CASE No. 12736 of 2017

         Between:-
         S.K CHHABADA I.P.C MARKETING NEAR DR.
         ABHAY JAIN GUARD LINE DAMOH (MADHYA
         PRADESH)

                                                                    .....PETITIONER
         (BY SHRI J.A. SHAH, LEARNED COUNSEL)

         AND

         SITASH GUPTA S/O R.K GUPTA OCCUPATION:
         ACCOUNT    OFFICER   DAINIK   BHASKAR,
         SAMACHAR PATRA 5 CIVIL LINE SAGAR
         (MADHYA PRADESH)

                                                                   .....RESPONDENT
         (BY SHRI PRIYANK AWASTHY, LEARNED COUNSEL)

      This petition coming on for admission and I.A. No.14773/2017 for
confirmation of stay this day, the court passed the following:
                                      ORDER

The present petition has been filed by the petitioner herein against the

initiation of a complaint case being criminal case No.2400492/2015 before the learned JMFC, in which the learned trial Court has dismissed an application moved by the petitioner herein raising a preliminary objection. The petitioner is an accused before the learned trial Court. The preliminary objection raised by him is that the complaint case does not have the power of attorney of the authorized representative for the company annexed along with the complaint.

The learned trial Court, while dismissing this application, has held that the power of attorney is permitted to file a complaint on behalf of the principal and the existence of the power of attorney is to be proved at the stage of evidence. Holding thus, the application was dismissed against which, the petitioner preferred a criminal revision being Cr.R. No.43/2017 before the learned Court of Sessions, which was also dismissed. Thereafter, challenging the order of the Court of revision dismissing his criminal revision, the petitioner has appeared before this Court praying for quashment of the criminal proceedings arising from the case

under Section 138 filed by the respondent herein against him.

The sole argument of the petitioner is that the complaint, when it was filed before the learned Magistrate, was not accompanied by the power of attorney and therefore, no cognizance could have been taken and process sould not have been

issued. He has relied upon the judgment of the Supreme Court passed in AIR 2014 SC 630 by a three Judge Bench. The genesis of the order passed in the said case was that a reference was made to the Larger Bench by a two Judge Bench in order to examine the issue, on account of several conflicting judgments of various High Courts, whether the holder of a power of attorney in a case under section 138 of the Negotiable Instruments Act, can testify on behalf of the complainant ? That was the main issue before the three Judge Bench and the ratio settled therein is at paragraph no.22 of the said judgment, where the Supreme Court has held that a conjoint reading of Sections 138, 142 and 145 of the Negotiable Instruments Act as well as Section 200 Cr.P.C., it was open to the Magistrate to issue process on the basis of the contents of the complaint and the documents filed in support thereof. However, it held that the power of attorney holder cannot testify on behalf of the complainant. It was only the complainant, who could be examined as a witness in support of the complainant and not the power of attorney holder. The issue before this Court is totally different.

Learned counsel for the respondent has also submitted that the judgment relied upon by the learned counsel for the petitioner is not a ratio to support his contention that the power of attorney must be annexed to the complaint at the time of filing the complaint case which must be taken note of by the Magistrate before issuing notice to the accused.

This Court is an agreement with the objections put forth by the learned counsel for the respondent. The judgment relied upon by the learned counsel for the petitioner is clearly not applicable in the facts and circumstances of this case.

The view of the learned trial Court that the presence or absence of the power of attorney at the time of filing of the complaint case itself is a fact that has to be proved during the course of evidence and cannot be faulted with.

Under the circumstances, the Court of revision dismissing the revision

petition filed by the petitioner herein also cannot be faulted for the same reason.

Under the circumstances, the petition sans merit is dismissed. Interim relief, if any, stands vacated.

A copy of this order be transmitted to the learned trial Court for recommencement of the proceedings before it.

(ATUL SREEDHARAN) JUDGE pnm

Digitally signed by POONAM MANEKAR Date: 2022.04.01 17:38:07 +05'30'