IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.06.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.1157 of 2002 K.C.Bohra Proprietor:M/s.Hansa Traders, Rep. by POA Hemant Bohra, No.57,Parthasarathy Pettai Street, Opp. Gongress Building, Teynampet, Chennai-600 086. ...Appellant/Complainant Vs. 1.Sri Durga Lodge Pvt. Ltd., Rep. by its Director, No.122, Ma.Po.C, Salai, Thiruthani-631 209. 2.P.Subramaniya Reddiyar, No.122, Ma.Po.C Salai, Thiruthani-631 209. ... ... Respondents/Accused This Criminal Appeal has been filed under Section 378(4) of the Criminal Procedure Code is directed against the judgment dated 06.05.2002 rendered by the learned XXIII Metropolitan Magistrate Court, Saidapet, Chennai in C.C.No.6662 of 1999 acquitting the respondents/accused in respect of an offence punishable under Section 138 of the Negotiable Instrument Act. For Appellant : Mr.R.Mohan For Respondents : No appearance J U D G M E N T This Criminal appeal is directed against the judgment and order of acquittal dated 06.05.2002 acquitting the respondents herein who were prosecuted before the Court below for an offence punishable under Section 138 of Negotiable Instrument Act, 1881 in C.C.No.6662 of 1999, a case instituted on private complaint filed by the appellant herein. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the Complainant/Appellant, in brief, is as follows:- The appellant/complainant is carrying on the business of selling electrical goods and appliances in the name and style of "Hansa Traders"(a proprietary concern) at No.57,Parthasarathy Pettai Street, Teynampet, Chennai-86. The Second respondent/second accused, as a director of the first respondent/first accused company, purchased electrical fittings, fans and other electrical accessories on behalf of the first respondent/first accused company from the above said business concern of the appellant/complainant and issued a cheque dated 05.08.1998 bearing Cheque No.643003 for a sum of Rs.60,515/- drawn on Indian Overseas Bank, Thiruthani Branch towards the price of the goods purchased. The said cheque was presented for collection through Lakshmi Vilas Bank, Thousand Light Branch, Chennai(Appellant's Banker) on 01.02.1999. But the same was returned unpaid by the drawee Bank(Indian Overseas Bank, Thiruthani Branch) on 05.02.1999 with an endorsement "funds insufficient". Thereafter, a statutory legal notice demanding payment of the amount covered by the dishonoured cheque was issued on 17.02.1999. The second respondent/second accused refused to receive the same. However, the first respondent/first accused received the said notice and sent a reply on 08.03.1999 containing false and untenable allegations. Since, the demand for payment of the amount covered by the cheque was not complied with within the statutory period after the receipt of notice, the offence under Section 138 of the Negotiable Instrument Act became complete and hence the complainant was constrained to prefer the complaint on the file of the Court below. 3. The offence punishable under Section 138 of the Negotiable Instruments Act allegedly committed by the respondents herein was taken cognizance of by the Court below and the said complaint was numbered as C.C.No.6662 of 1999. Mr.Hemant Bohra son of the complainant Mr.K.C.Bohra was examined and his statement was recorded by the learned Metropolitan Magistrate under Section 200 Cr.P.C. before issuing process to the respondents/ accused. On appearance, the respondents/accused pleaded not guilty. The learned Metropolitan Magistrate conducted trial in which two witnesses were examined as P.W.1 and P.W.2 and eight documents were marked as Ex-P1 to Ex-P8 on the side of the complainant. No witness was examined and no document was marked on the side of the respondents/accused. 4. Ultimately, after considering the evidence, the learned Metropolitan Magistrate came to the conclusion that the complainant had failed to prove the charges against the respondents herein/accused and acquitted them by impugned judgment dated 06.05.2002. The reasons assigned by the learned Metropolitan Magistrate for coming to the said conclusions are:- https://hcservices.ecourts.gov.in/hcservices/ i) The person who at the first instance gave the statement under Section 200 of Cr.P.C. and later on deposed as P.W.1 on behalf of the complainant was not truly authorized by the complainant and hence the prosecution based on the private complaint is vitiated; ii) The cheque in question was not presented for payment in the drawee bank within the period of its validity (within a period of six months from the date of its issue) in accordance with law and hence the complaint itself is misconceived and incompetent. 5. The learned counsel for the appellant argued that the judgment of the Court below was not only erroneous, but also an example of total non-application of mind to the relevant provisions of law; that the Court below, while correctly holding that the complaint itself was signed and preferred by K.C.Bohra, Proprietor of M/s.Hansa Traders and that it was his son Hemant Bohra who gave statement under Section 200 of Cr.P.C. and later on deposed as P.W.1 on behalf of K.C.Bohra, committed an error in holding that he was not truly authorized by K.C.Bohra to give evidence on his behalf; that the observation made by the Court below to the effect that Ex-P1 was not a valid document authorizing P.W.1 - Hemant Bohra to conduct the case on behalf of the complainant K.C.Bohra was erroneous; that the Court below erred in assuming that the Power of Attorney should be in a particular format and that the same had resulted in an erroneous findings that P.W.1 was not a person authorized by the complainant to give evidence on his behalf. Arguing further, the learned counsel for the appellant contended that the Court below totally misconceived the proviso (a) to Section 138 of the negotiable Instruments Act and committed an error in calculating the period of six months from the date of cheque in ignorance of the provision contained is Section 9 of the General Clauses Act,1897; that while computing the period of six months from the date of cheque the date on which the cheque was drawn (the date found in the cheque) should have been excluded; that the Court below failed to see that the cheque had reached the drawee Bank on the last day of the period of six months and it was returned unpaid on the said date itself; that the Court below came to a wrong conclusion that the cheque was not presented within six months from the date of its drawal because of the non- application of its mind to the provision contained in Section 9 of the General Clauses Act,1897 and that in any event, the said finding should be held erroneous and unsustainable. 6. The submissions made by the learned counsel for the respondents in reply to the above said arguments advanced on behalf of the appellant were also heard and this Court gave its anxious considerations to the same. 7. The respondents 1 and 2 herein were prosecuted by the appellant herein for an alleged offence punishable under Section https://hcservices.ecourts.gov.in/hcservices/ 138 of the Negotiable Instrument Act. In fact the complaint was signed and presented by K.C.Bohra, Proprietor of M/s.Hansa Traders. However, after taking cognisance and before issuing process to the respondents/accused, the Court below did not examine the complainant(K.C.Bohra). On the other hand, the statement of his son Hemant Bohra was recorded on 21.09.1999 and after recording his statement, the Court below chose to issue process to the respondents herein/accused. After appearance of the respondents herein/accused, the son of the complainant Mr.Hemant Bohra was examined as P.W.1 and documents were marked on behalf of the complainant. A letter of authorization allegedly issued by the complainant K.C.Bohra dated 01.09.1999 has been marked as Ex.P1. The said letter is relied on by the appellant/complainant as the document authorising P.W.1 - Hemant Bohra to appear on behalf of the complainant and give evidence. The contents of Ex-P1 are reproduced here under:- "I K.C.Bohra do hereby authorize my son Hemant Bohra to appear on my behalf in the criminal case filed by me and also to give evidence on my behalf. The power is given without any force or coercion but with my full consent." 8. The learned Metropolitan Magistrate, after admitting the said document and marking it as Ex-P1 through P.W.1, without even reserving consideration on its admissibility at a later stage, at last at the conclusion of trial, has turned around and held that the said document is not a valid document of authorization to conduct trial and to give evidence on behalf of the complainant. The said finding shown to be one of the grounds for acquitting the respondents herein/accused is challenged as untenable. The learned counsel for the appellant placed reliance on a judgment of a learned Single Judge of this court (Mr.Justice Thangaraj.J. as he then was) in "Modern Denim Limited Vs- Lucas TVS Ltd" reported in 1999 (III) CTC page 143 and the Judgment of a Division Bench of this Court consisting of Mr.Justice P.Sathasivam (as he then was) and Mr.Justice S.Manikumar in "K.Gopalakrishnan Vs- Karunakaran, rep. by the Power of Attorney Holder, Dhandapani" reported in 2006 (4) CTC 333. 9. In "Modern Denim Limited Vs. Lucas TVS Ltd", after referring to several earlier decisions in this regard, this Court held that authorization need not be given before preferring the complaint and that such an authorization could be validly given even subsequent to the filing of the complaint. Of course, the said case dealt with a complaint preferred on behalf of a company. It has been held therein that a company, being a juristic person, can file complaint only through a human agency and that the absence of authorization to the person preferring the complaint on behalf of the company can be rectified by a subsequent authorisation. https://hcservices.ecourts.gov.in/hcservices/ 10. The said question was dealt with in detail by the Division Bench of this Court in K.Gopalakrishnan Vs. Karunakaran, rep. by Power of Attorney Holder, Dhandapani. It is the observation of the Division Bench of this Court that the expression "Complainant" has not been defined either in Cr.P.C. or Power of Attorney Act and that complainant means the person who presents complaint to Court or makes complaint to the Court. The further observation made therein is to the effect that a person who physically presents the complaint is deemed to be the complainant and that hence the examination of the Power of Attorney upon oath at the time of presentation of the complaint and reduction of his statement into writing is sufficient compliance of Section 200 Cr.P.C. 11. Relying on the judgment of the Honourable Supreme Court in M/s.M.M.T.C. Ltd, Vs- M/s.Medchl Chemicals Pharma (p) Limited., reported in 2002 Criminal Law Journal 266, the Division Bench has held "even though the General Power of Attorney at initial stage failed to produce the deed of power of Attorney or the Affidavit of the complainant in proof of execution of power of Attorney, the same can be rectified by producing the same at a later stage of the proceedings as and when the validity of the Power of Attorney is questioned by the accused and the Court could then be called upon to decide the genuineness or validity of the Power of Attorney." While considering the question: "whether the sworn statement of the complainant is also required to be recorded on a future date on his appearance in the Court to enable the Court to exercise its discretion under Sections 202 and 203 of the Code of Criminal Procedure? - the Division Bench held that if the complaint was presented through an agent holding the Power of Attorney, the agent himself should be construed to be the complainant and that the law did not make it necessary to examine the principal at a later stage. When the complaint was preferred through an agent holding Power of Attorney, for all practical purposes the agent holding Power of Attorney could be construed to be the payee or holder in due course as the case may be was the reasons assigned by the Division Bench to arrive at such a conclusion. 12. All the above said aspects are not germane to the issue involved in the case on hand. In this case complaint was signed and preferred not by an agent having the Power of Attorney but by the payee himself viz., K.C.Bohra, Proprietor of M/s. Hansa Traders. Only after the Court takes cognizance of the offence by taking the complaint on file, the question of examination of the complainant on oath will arise. In this case, after taking the complaint on file, issue of process was postponed rightly till the examination of the complainant was over. However, though the complaint was preferred by the original payee, a number of adjournments were given by the Court below for the examination of the complainant and at last, the statement of his son was recorded on 21.09.1999 subsequent to which process was issued to the respondents/accused. https://hcservices.ecourts.gov.in/hcservices/ 13. The two judgments discussed above dealt with the question of a complaint preferred on behalf of a company, as a company is a juristic person has a necessity to act through a human agency. It was held therein that a complaint could be preferred by a person who was looking after the affairs of the company, namely Manager, Director, Partner, etc. Only in such cases, it was held that the absence of proper authorization by way of Power of Attorney could be rectified subsequently when the authority of the person who preferred the complaint on behalf of the company was questioned by the accused at a later stage of the proceeding. The said observation is applicable only when the complaint is presented by such an officer of the company or an authorised agent of the payee. In case the complaint itself is presented by the payee himself, then it shall not be proper compliance of the requirement of Section 200 of Cr.P.C. to record the statement of an agent of the complainant (payee). In K.Gopalakrishnan's case decided by the Division Bench of this court, it was the agent of the payee, who actually presented the complaint and hence his statement recorded under Section 200 Cr.P.C. was held to be sufficient compliance of the requirement of the said section. That is why it was also held that recording of the statement of the payee at a later point of time when he appears was not necessary. The reason assigned therein for holding so was, that the agent who physically presented the complaint should be held to be the payee or holder in due course. 14. The facts of the case on hand are different. The complaint was presented by the Payee K.C.Bohra. After the complaint was received by the learned Judicial Magistrate, issue of process to the accused was postponed till the examination of the complainant for which the matter was adjourned several times. At last, Hemant Bohra son of K.C.Bohra appeared before the learned Judicial Magistrate on 21.09.1999, that is nearly after six months from the date of presentation of the complaint, and produced a letter allegedly issued by K.C.Bohra (marked as Ex.P1) authorizing Hemant Bohra to appear on his behalf in this Criminal case and give evidence on his behalf. The entire contents of the letter has been extracted in an earlier paragraph of this judgment. The said letter was dated 01.09.1999. 15. Of course, the definition to the term 'Power of Attorney' given in the Power of Attorney Act is only an inclusive definition. Section 1-A of Power of Attorney Act reads as follows:- "Power of Attorney includes an instrument empowering a specified person to act for and in the name of the person executing in it." 16. In the light of the said inclusive definition, the contention of the learned counsel for the appellant that it is not necessary that the Power of Attorney should be in a particular format and that the letter marked as Ex.P1 would be a valid Power https://hcservices.ecourts.gov.in/hcservices/ of Attorney can be accepted. However, whether the examination of Hemant Bohra, the alleged Power of Attorney of the complainant and reducing his statement into writing would amount to proper compliance of the requirement of Section 200 Cr.P.C. is to be considered. As pointed out supra, the complaint was not preferred by Hemant Bohra, as the agent of K.C.Bohra. The complaint was also not preferred in the name of Hemant Bohra. Therefore, by no stretch of imagination Hemant Bohra could be construed to be the complainant. Section 200 Cr.P.C. mandates that, the magistrate taking congnizance shall, before issuing process, examine the complainant upon oath and reduce the substance of such an examination into writing and that the same must be signed by the complainant and also by the Magistrate. 17. In this regard, it shall be useful to refer to the judgment of Rajasthan High Court (Jaipur Bench) in "Ram Prasad v. Hari Narain and others" reported in "AIR 1998 RAJASTHAN 185". In the said judgment, the following observations have been made. 18. Similar view was expressed by the Hon'ble Apex court in Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others reported in 2005 (3) CTC 128. "In our view, the word "acts" employed in Order 3, Rules 1 & 2 of Code of Civil Procedure confines only in respect of "acts" done by the Power of Attorney holder in exercise of power granted by the instrument. The term "acts" should not include deposing in place instead of the principal. In other words, if the Power of Attorney holder has render some "acts" in pursuance of the Power of Attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross- examined" — was the observation made by the Hon'ble Apex court in the above said case. In Shambhu Dutt Shastri v. State of Rajasthan reported in 1986 (2) WLN 713 (Raj.), it was held that a general Power of Attorney holder could appear, plead and act on behalf of the party, but he cannot become a witness on behalf of the party and that no one could delegate the power to enter the witness box on behalf of himself or to appear in a box and that to appear in a witness box altogether different act and that a general Power of Attorney holder could not be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. The said view was quoted with approval by the Hon'ble Apex court in 2005(3)CTC 128 in Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others discussed above. The contrary view expressed by Bombay High Court in Humberto Luis v. Florino Armando Luis, reported in 2002 (2) Bom CR 754 to the effect that the https://hcservices.ecourts.gov.in/hcservices/ provisions contained in Order III, Rule 2 of the Code of Civil Procedure could not disentitle the Power of Attorney holder to depose on behalf of his principal and that the word "act" appearing in the said rule would take within its sweep "depose", was also considered by the Hon'ble Supreme Court and the Hon'ble Supreme Court disagreed with the said view of Bombay High Court. Therefore, it is quite obvious that a Power of Attorney holder cannot depose on behalf of the complainant as the complainant. The necessary corollary is that the statement of the Power of Attorney cannot be substituted for the statement of the complainant when the Power of Attorney has not actually presented the complaint. The word "acts" used in Rule 2 of Order III of Code of Civil Procedure does not include the act of Power of Attorney holder to appear as a witness on behalf of a party. Power of Attorney holder of a party can appear only as a witness in his personal capacity and whatever he has knowledge about the case he can stood on oath but he cannot appear as an witness on behalf of the party in the capacity of that party". 19. For all the reasons stated above, this court comes to the conclusion that the finding of the court below that the mandatory provision found in Section 200 Cr.P.C. providing a condition precedent for issuing process was not followed which pleading to the conclusion that the criminal proceeding initiated against the respondent stands vitiated and that the complaint deserves to be dismissed is well founded. This court finds no defect or infirmity in the judgment and order of acquittal dated 06.05.2002 rendered by the learned XXIII Metropolitan Magistrate Court, Saidapet, Chennai in C.C.No.6662 of 1999. 20. the next contention raised by the learned counsel for the appellant is that the other reason for the dismissal of the complaint assigned by the court below based on the question of limitation was unsustainable. The learned counsel for the appellant pointed out the fact that the cheque was issued on 05.08.1998 and it was presented for collection to the bankers of the appellant on 01.02.1999 itself and contended that the cheque was presented well within six months (within the period of its validity). It is the further contention of the learned counsel for the appellant that in any event, the cheque had reached the drawee bank, namely Indian Overseas Bank, Thiruttani branch, on 05.02.1999 itself and the same was returned with an endorsement "funds insufficient" on the said date itself. According to the submission made by the learned counsel for the appellant the date on which the cheque was drawn should be excluded and the date on which the cheque reached the drawee bank should be included in calculating the period of six months (period of validity) and that the learned Metropolitan Magistrate erroneously included the date of drawal of the cheque in calculating the period of six months. https://hcservices.ecourts.gov.in/hcservices/ 21. As per Section 9 of the General Clauses Act, the date on which the cheque was issued should be excluded for the purpose of calculating the period of limitation. The said section reads as follows: "Commencement and termination of time — In any (Central Act) or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word "from", and, for the purpose of including the last in a series of days or any other period of time, to use the word "to"." 22. The first contention made by the learned counsel for the appellant in this regard that the presentation of the cheque to the banker of the appellant for collection, within the period of validity was sufficient compliance of Proviso (a) to Section 138 of the Negotiable Instruments Act, 1881 cannot be countenanced. The said question was considered by the Hon'ble Apex court in Shri Ishar Alloy Steels Ltd. Vs. Jayaswals Neco Ltd reported in (2001) 3 Supreme Court Cases 609. It was held therein that the cheque should reach the drawee bank within the period of validity. In the said case, a cheque drawn on 21.07.1997 was presented in the payee's bank for collection on 20.01.1998 and the said cheque reached the drawee bank on 24.01.1998, admittedly after six months from the date on which the cheque became payable. The Hon'ble Supreme Court held that the expression "the bank" occurring in Proviso (a) to Section 138 of the Negotiable Instruments Act, 1881 meant the drawee bank and not the collecting bank of the payee. In line with the said view expressed by the Hon'ble Supreme Court, this court hereby holds that the contention raised by the learned counsel for the appellant that the presentation of the cheque for collection to the appellant's bank within the validity period was enough, has got to be rejected as untenable. 23. However, in this case, on facts, it is found that the cheque in question reached the drawee bank within the validity period (six months). The cheque was drawn on 05.08.1998. It reached the drawee bank through the collecting bank on 05.02.1999. The cheque was