M/S T.R.Traders vs The State Of Telangana
2021 Latest Caselaw 699 Tel

          THE HONOURABLE SRI JUSTICE K. LAKSHMAN

    CRIMINAL PETITION Nos.2837, 2849 & 3274 OF 2019

COMMON ORDER:

         These   Criminal   Petitions   are   filed     to   quash    the

proceedings in CC.Nos.489 of 2018, 435 of 2018 and 434 of

2018, pending on the file of XV Special Magistrate Court,

Erramanzil, Hyderabad.       In all these criminal petitions, since

the parties and issues are also common, there are being heard

together and disposed of vide this common order.

         2.   Heard   S.M.Subhani,      learned       counsel   for   the

petitioners and Sri V.Ramchander Goud, learned counsel

appearing for Respondent No.2.

3. Petitioners herein are accused in the above said CCs.

The offence alleged against the petitioners herein is under

Section 138 of Negotiable Instruments Act, 1881 (for short 'the

Act').

4. Sri S.M.Subhani, learned counsel for the petitioners

would submit that the 2nd respondent has filed the complaints

through his GPA holder Mr.B.Pradeep Kumar, S/o.B.Ramaiah.

The complaints were filed on 14.05.2015 and the alleged

General Power of Attorney is dt.29.05.2015 executed at

Washington DC, USA. Therefore, as on date of filing of the

complaints under Section 200 Cr.P.C for the offences under

Section 138 of the Act, in the Court below, the Power of

Attorney holder is not having authority or power to represent

the complainanat. Even then, the Court below has entertained

the said complaints and numbered them. He has referred the

copy of the complaints filed under Section 200 Cr.P.C and also

copy of the Power of Attorney and by referring the same, learned

counsel for the petitioners would submit that the complaints

were filed on 14.05.2015 whereas the Power of Attorney is

dt.29.05.2015. Therefore, the Court below has grossly erred in

entertaining the complaints taking cognizance of offence under

Section 138 of the Act against the petitioners herein. According

to him, the Court below instead of returning the complaints on

the ground that as on date of filing of the complaint, the Power

of Attorney holder is not having Power of Attorney at all, the

learned Magistrate has entertained the complaint, taken

cognizance against the petitioners herein for the offence under

Section 138 of the Act. Thus, the Court below has committed

grave irregularity. Taking of cognizance itself is in violation of

the procedure laid down under law. He would further submit

that there is no legally enforceable debt by the petitioners

herein. The 2nd respondent has obtained the cheques in

dispute, under coercion or thereat.

4. Learned counsel for the petitioners would further

submit that the 2nd respondent has lodged a complaint on

22.05.2014 with Police, CCS, Team-I, Hyderabad, who inturn

registered a case in Cr.No.126 of 2014 for the offences under

Sections 406, 420 and 506 IPC against the petitioners herein.

After completion of investigation, the Police have filed final

report on 22.05.2014 treating it as "FIR submitted as Action

dropped". By referring to the said final report, learned counsel

for the petitioners would submit that the Police have filed the

said final report by specifically mentioning that the 2nd

respondent and the 2nd petitioner went to CCS, DD office and

stated that they have settled the matter outside the Court and

submitted a written compromise letter and they have requested

to drop further action in the case. By referring the same, the

Investigating Officer in Cr.No.126 of 2014 filed final report

stating as "Action Dropped".

5. Learned counsel for the petitioners by referring to

the contents of the complaint in the present CCs would submit

that though the 2nd petitioner and the 2nd respondent have

settled the matter outside the Court and though the Police have

filed final report, with the very same allegations by taking the

advantage of the possession of the cheques of the petitioners,

the 2nd respondent has filed the present three complaints only

to harass the 2nd petitioner for wrongful gains. According to

him, it is abuse of process of law.

6. Learned counsel for the petitioners would submit

that there is no mention in the complaints that the Power of

Attorney holder is having knowledge of the entire facts and well

versed with the transactions between the petitioners and the 2nd

respondent. He has also not filed an affidavit as required under

Section 200 Cr.P.C. Even then, without verifying the same, the

learned Magistrate has taken cognizance of the complaint under

Section 138 of the Act, which is in violation of principle laid

down by the Hon'ble Apex Court in Priyanka Srivastava And

Another vs. State of Uttar Pradesh And Others1.

7. Learned counsel for the petitioners by referring to

the principle laid down by the Hon'ble Apex Court in Vinita

S.Rao vs. Essen Corporate Services (P) Ltd2, would submit

that the complaint filed through Power of Attorney holder is not

maintainable.

8. With the said submissions, learned counsel for the

petitioners seeks to quash the proceedings in CC.Nos.489, 435

and 434 of 2018.

9. On the other hand, learned counsel for the 2nd

respondent would submit that the 2nd respondent has executed

the Power of Attorney on 29.04.2015 itself. There is an

endorsement of the notary of Embassy of India, Washington DC,

USA to the said effect. The petitioners are taking advantage of

the word typed as 'May' in the Power of Attorney and contending

that as on the date of filing of the complaint, there is no GPA in

favour of the Power of Attorney holder. But in fact, the Power of

Attorney is dt.29.04.2015 itself. He would further submit that

it is a factual aspect which has to be decided during the course

of the trial. The said contention of the petitioners cannot be a

ground for the purpose of quashing of the present proceedings

in CC.Nos.489, 435 and 434 of 2018, for the offence under

Section 138 of the Act. He would further submit that the

dispute between the 2nd petitioner and the 2nd respondent in

(2015) 6 SCC 287

(2015) 1 SCC 527

Cr.No.126 of 2014, pending on the file of CCS, Team-I,

Hyderabad is altogether different. The said dispute is nothing

to do with regard to the present transactions between the

parties. By referring to the final report dt.22.05.2014 in

Cr.No.126 of 2014, learned counsel for the 2nd respondent

would submit that the said dispute is with regard to purchase of

the land admeasuring Ac.13-00 situated at Warangal District

and obtaining an amount of Rs.1.83 crores from the 2nd

respondent by the 2nd petitioner herein. The said issue was

settled between the parties and they have informed the

Investigating Officer in Cr.No.126 of 2014 that the matter has

been settled between the parties. The cheque numbers

mentioned in the said final report are different from the cheque

numbers in the present three complaints.

10. According to the learned counsel for the 2nd

respondent, the sworn statement as required under Section 200

Cr.P.C. was filed along with the complaints itself. On

verification of the same, learned Magistrate has taken

cognizance of offence under Section 138 of the Act against the

petitioners herein. He would further submit that the petitioners

herein without verifying the same in the sworn affidavit in the

above said CCs raised that objection which is not a substantial

objection. Thus, there are several factual aspects to be elicited

during trial. According to him, the petitioners instead of

proceeding with the trial, approached this Court by way of filing

the present petitions seeking to quash the complaints. With the

above submissions, the learned counsel for the 2nd respondents

seeks to dismiss the present petitions.

11. Learned Public Prosecutor on instructions would

submit that there are factual aspects which are to be decided

during the course of trial. The petitioners will have an

opportunity of cross-examination of prosecution witnesses

including the 2nd respondent-complainant and his Power of

Attorney holder. Instead of availing the said facility, the

petitioners herein have filed the present petitions seeking to

quash the complaints under Section 482 Cr.P.C. With the said

contentions, learned Public Prosecutor sought dismissal of the

present petitions.

12. The above said aspects would reveal that there is no

dispute that the 2nd respondent i.e., Ravi Puli, S/o.Rajaiah,

resident of USA has executed Power of Attorney in favour of

B.Pradeep Kumar, S/o.B.Ramaiah. The purpose of execution of

the said Power of Attorney is also specifically mentioned therein.

A perusal of the Power of Attorney would reveal that the same

was executed at Washington DC, USA. At one place i.e., last

paragraph of the Power of Attorney, it is mentioned that the

same was executed on 29th May, 2015 at Washington DC

whereas in the bottom of the said Power of Attorney, there is an

endorsement "Sushma Sushil Kumar, Assistant Consular

Officer, Embassy of India, Washington, DC (USA), Apr 29 2015".

There are two witnesses to the said Power of Attorney. There is

another endorsement in the very same Power of Attorney as

"S.No.1855, Seen in the Consular Section of the Embassy of

India, Washington DC on this 29th day of April, 2015". There is

one more endorsement which reads as "Mr.Ravi Puli, verified as

per Passport No. F 3933016, Washington, DC, Issued at Sep 20,

2005".

13. According to the 2nd respondent, the said Power of

Attorney was executed on 29.04.2015 whereas the complaints

were filed on 14.05.2015. Therefore, the said Power of Attorney

was in existence as on the date of filing of the complaints and

the Court below on verification of the same only taken

cognizance of the offence against the petitioners under Section

138 of the Act.

14. A perusal of the Power of Attorney would reveal that

there is an endorsement by the Assistant Consular Officer on

29.04.2015 itself and an endorsement of Indian Embassy on

29.04.2015 itself. In the last paragraph of the said document,

the word 'May' is typed. By referring to the same, learned

counsel for the petitioners would submit that the same was

executed on 29.05.2015. Whether the said Power of Attorney

was executed on 29.05.2015 or 29.04.2015 is a question of fact

to be elicited during the trial. It is also relevant to note that the

petitioners will be given an opportunity of cross-examination of

prosecution witnesses. They can avail the said opportunity to

prove that there is no Power of Attorney as on the date of filing

of the complaints on 14.05.2015 and instead of availing the said

opportunity, the petitioners herein filed the present petitions to

quash the proceedings in CCs itself. Therefore, according to

this Court, on the said ground, the proceedings in the

complaints cannot be quashed in exercise of power of this Court

under Section 482 Cr.P.C.

15. With regard to other contentions raised by the

petitioners that the complaints filed under Section 200 Cr.P.C.

through Power of Attorney holder are not maintainable are

concerned, this Court vide order dt.05.02.2021 in Crl.P.No.222

of 2021, by referring to the principle laid down by a three-Judge

Bench of Hon'ble Apex Court in A.C.Narayana v. State of

Maharashtra3 and the Karnataka High Court in Nagarajappa

v. H.D. Kumar Swamy4, held that a complaint filed through

Power of Attorney holder is maintainable.

16. In A.C. Narayanan1, a Three-Judge Bench of the

Apex Court had an occasion to deal with the issue of

maintainability of complaint filed by a original complainant

through power of attorney holder. In the said case, the

complaint was filed under Section 200 of the Code for the

offence under Section 138 of the Negotiable Instruments Act,

1881. The complaint was filed through a power of attorney

holder. The Apex Court by referring to various judgments

rendered by it earlier, held as under:

"19). As noticed hereinabove, though Janki Vashdeo Bhojwani (supra), relates to powers of Power of Attorney holder under CPC but it was concluded therein that a plaint by a Power of

(2014) 11 SCC 790

Crl.P.No.1174 of 2012 decided on 11.10.2018

Attorney holder on behalf of the original plaintiff is maintainable provided he has personal knowledge of the transaction in question. In a way, it is an exception to a well settled position that criminal law can be put in motion by anyone [vide Vishwa Mitter (supra)] and under the Statute, one stranger to transaction in question, namely, legal heir etc., can also carry forward the pending criminal complaint or initiate the criminal action if the original complainant dies [Vide Ashwin Nanubhai Vyas vs. State of Maharashtra (1967) 1 SCR 807]. Keeping in mind various situations like inability as a result of sickness, old age or death or staying abroad of the payee or holder in due course to appear and depose before the Court in order to prove the complaint, it is permissible for the Power of Attorney holder or for the legal representative(s) to file a complaint and/or continue with the pending criminal complaint for and on behalf of payee or holder in due course. However, it is expected that such power of attorney holder or legal representative(s) should have knowledge about the transaction in question so as to able to bring on record the truth of the grievance/offence, otherwise, no criminal justice could be achieved in case payee or holder in due course, is unable to sign, appear or depose as complainant due to above quoted reasons. Keeping these aspects in mind, in MMTC (supra), this Court had taken the view that if complaint is filed for and on behalf of payee or holder in due course, that is good enough compliance with Section 142 of N.I.

Act."

17. Following the said principle held by the Apex Court

in A.C. Narayanan1, the Karnataka High Court in

Nagarajappa2 held that power of attorney holder can maintain

a private complaint filed under Section 200 of the Code. In the

said case, a complaint was filed by the original complainant

through his General Power of Attorney Holder for the offences

punishable under Sections 500, 501 and 502 of IPC.

18. The Karnataka High Court applying the principle

laid down by the Apex Court in A.C. Narayanan1 and other

judgments held that in view of the fact that there being no

power under Section 199 of the Code for filing a petition

through power of attorney holder, the complaint filed by the

original complainant through power of attorney holder is

maintainable.

19. Following the said principle in Crl.P.No.222 of 2021,

this Court held that a complaint under Section 200 Cr.P.C filed

through Power of Attorney holder can be maintained. In view of

the said authoritative law, the contention of the petitioners that

the complaints filed through Power of Attorney holder are not

maintainable is not sustainable.

20. Learned counsel for the petitioners has also raised

another ground that the Power of Attorney holder is not having

knowledge of the facts and he has not conversant with the

transactions. There is no mention either in the Power of

Attorney or in the complaints that the Power of Attorney is

conversant with the facts and he is having knowledge of the

facts.

21. A perusal of the Power of Attorney would reveal that

there is a specific mention that Power of Attorney will act on

behalf of principal to do or to execute all or any of the acts or

things which are mentioned therein including filing of the

complaint, engaging lawyers etc. It is mentioned in the Power of

Attorney, that the acts done by Attorney holder shall be deemed

to have been done by the principal himself, his heirs, executors,

administrators and legal representatives and ratified to that

effect.

22. In the complaint filed under Section 200 Cr.P.C.

there is a specification which reads as follows:

"I, the complainant herein do hereby verify that the above contents are true and correct to the best of my knowledge, belief and information."

23. Thus, there is a mention that the Power of Attorney

holder is having knowledge and belief with regard to the

transaction of facts and he has verified the contents of the

complaints to the said effect. However, it is a question of fact

which has to be elicited during the full fledged trial. The

petitioners will be given an opportunity of cross-examination to

prove the said fact that whether the Power of Attorney holder is

having knowledge of facts of the present case or not. They can

take advantage of the same and get acquitted. Instead of

availing the same, the petitioners herein have filed the present

complaints seeking to quash the CCs itself.

24. It is also relevant to note that the learned counsel for

the 2nd respondent during the course of arguments has also

mentioned that there is every possibility of 2nd respondent

himself coming to India and depose in the said CCs and that the

matters are posted for trail. Even during the course of cross-

examination, the said facts can be elicited from the 2nd

respondent or his Power of Attorney holder. There is

considerable force in the said contention. The petitioners

instead of availing the said opportunity, filed the present

petitions seeking to quash the present proceedings and the

same is not sustainable.

25. The 2nd respondent has filed sworn affidavit along

with complaints as required under Section 200 Cr.P.C. In view

of the same, the said contentions raised by the learned counsel

for the petitioners that the complainant has not filed affidavit as

required under Section 200 Cr.P.C is also not sustainable.

26. During the course of arguments, learned counsel for

the 2nd respondent would submit that the chief affidavit was

filed in March, 2019. Even then, instead of proceeding with the

cross-examination, the petitioners herein filed the present

petitions with a view to drag on the matter on one pretext or the

other.

27. Admittedly, the complaints are of the year, 2018 and

the offence is under Section 138 of the Act. It is a summary

trial procedure. The petitioners can proceed with the trial and

prove that the cheques were not issued towards legally

enforceable debt and that the 2nd respondent obtained the said

cheques in dispute under threat and coercion. Instead of doing

so, the petitioners filed the present petitions. Thus, as

discussed supra, there are several factual aspects which are to

be elicited during full fledged trial.

28. In view of the above said discussion, the petitioners

failed to establish any ground warranting interference of this

Court in exercise of its power under Section 482 Cr.P.C., these

petitions fail and accordingly they are dismissed. Interim order

granted earlier is vacated.

Miscellaneous Petitions, pending if any, shall stand

closed.

__________________ K. LAKSHMAN, J Date: 05.03.2021 dv