IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 07.01.2016
Date of decision: 13.01.2016
M/S.JANE NORMAN RETAIL PVT LTD & ANR. … PETITIONERS
Through: Mr.K.K. Sharma and Mr. Vipin Rathi, Advocates.
STATE (NCT OF DELHI) & ANR. ….. RESPONDENTS
Through: Ms. Rajni Gupta, APP.
Mr. Vikas Bhatia, Advocate for the respondent No.2.
HON’BLE MR. JUSTICE ASHUTOSH KUMAR
ASHUTOSH KUMAR , J.
- A perusal of the complaint shows that the same was signed by the complainant Smt. Pushpa Gupta. The special power of attorney holder of the complainant namely Manan Gupta also appears to be aware of the transaction between the parties which is evident from Ex.CW-1/H which is a document of settlement between the parties. The aforesaid document has been signed by the attorney and the petitioner. Thus the contention of the petitioner that the attorney did not have any complete knowledge about the transaction between the parties cannot be accepted. The grievance of the petitioner about not having been provided with the opportunity of defending his case or defending himself is also untenable as no attempt was made by him or on his behalf to cross examine the complainant or the special power of attorney holder. At a much belated stage, a bleak attempt was made to ask for cross examining the complainant but considering it to be an attempt to delay the trial, such a prayer was rejected. The challenge to such a rejection order also could not be sustained.
- The petitioner, therefore, has left undisputed the fact that the cheque in question was signed by him. Thus the presumption under Sections 118B and 139 of the N.I. Act directly applies to the facts of this case.
- At the stage of notice under Section 251 of the Code of Criminal Procedure, the petitioner had, though, accepted that the cheque in question was signed by him but denied of having filled up the other particulars. Such a denial cannot be accepted. Whenever a person signs a cheque and delivers it to the payee, presumption under Section 118B and 139 of the N.I.Act has to be raised and in the absence of any attempt to rebut the same, it stands admitted.
- In A.C. Narayaanan vs State of Maharashtra & Anr., 2013 (4) JCC (NI) 214: (2014) 11 SCC 790, the Supreme Court has held that a Magistrate has the power to issue process on the basis of contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before the issuance of the process under Section 200 of the Code of Criminal Procedure, it is open for a Magistrate, if he thinks fit, to call upon the complainant to remain present or to examine him as to the facts contained in the affidavit submitted by him in support of his complaint. Such is but only a matter of discretion and a Magistrate is not bound to call upon the complainant to remain present before the Court and to examine him upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the Negotiable Instruments Act.
- While dealing with the position of a power of attorney holder, the Supreme Court in A.C. Narayanan (Supra) had stated:-
“Nevertheless, an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint……….”
- The aforesaid requirement of such an assertion in the complaint about the power of attorney holder being in know of the transaction in question is to ensure that without knowledge or without any cause, any person may not be harassed or troubled or prosecuted in a Court of law.
- Though there is no specific statement in the complaint about the special power of attorney holder to be conversant with the transaction between the complainant and the petitioner, but the settlement agreement (Ex.CW-1/H) has been signed by both, the special power of attorney holder and the petitioner. This makes it very clear that the petitioner also is aware of the fact that the entire transaction was known to the attorney. The Supreme Court in A.C. Narayanan (Supra) has categorized the legal position regarding a power of attorney holder:-
(i) Filing of complaint petition under Section 138 of N.I. Act through power of attorney is perfectly legal and competent.
(ii) 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.
(iii) 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.
(iv) In the light of Section 145 of N.I. 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 N.I. 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 N.I. Act.
(v) 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.”
- Thus it is clear that the purpose of a specific statement about the knowledge of the attorney holder in complaint is only for the purposes of avoiding prosecution by any person, who is unknown to the transaction. This not being the case in the present set of facts, the same cannot be read and construed against the complainant/respondent.
- Thus for the reasons aforesaid, this Court finds no apparent reason to differ with the judgment of the Trial Court as well as of the Appellate Court.
- The revision petition is dismissed.