- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.1756 OF 2007 APPLICATION NO.1756 OF 2007 APPLICATION NO.1756 OF 2007 Mohammed Hussain Abdullabhai Kagalwala ...Applicant vs. Ronak International and others ...Respondents Mr.Girish Kulkarni and Kapil Dave for the applicant Mr.R.Sattyanarayana for Respondent Nos.1 and 2 Mr.Y.S.Shinde, A.P.P. for State AND AND AND CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.234 OF 2007 APPLICATION NO.234 OF 2007 APPLICATION NO.234 OF 2007 Seema Mahesh Chavan ...Applicant vs. Dhananjay Krishna Gaikwad and another ...Respondents Mr.Milind Deshmukh for the applicant Mr.Y.S.Shinde A.P.P. for State Mr.Rahul Kate for respondent no.1. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 1,2009 : APRIL 1,2009 : APRIL 1,2009 P.C.: P.C.: P.C.: 1. The submissions of the learned counsel for the parties were heard on the last date. As the issues involved in both the matters are identical, same are taken up for admission together. 2. Criminal application no.1756 of 2007 is concerned, the same is an application under sub section 4 of section 378 of the Code of Criminal Procedure,1973. The first and second respondents have been acquitted by the impugned order for an offence punishable under section 138 r/w section 141 of the - 2 - Negotiable Instruments Act,1881 (hereinafter referred to as the said Act of 1881). The present applicant is the complainant. A complaint was signed and filed by one Mr.Zulfikar Mohammad Hussain Kagalwala the son and constituted attorney of the applicant. The said constituted attorney deposed before the learned trial Judge. The acquittal is on the ground that though the Constituted Attorney disclosed the date of the Power of Attorney as 12th January 1998 but in fact the same is dated 5th July 1991. The learned Judge observed that from cross examination of Constituted Attorney of the applicant it was apparent that the complainant was relying upon the Power of Attorney dated 12th January 1998 and the said Power of Attorney was not on record. The learned Judge observed that the entire transaction subject matter of the complaint was made by the applicant himself and the same was not by the Power of Attorney holder. The learned Judge observed that therefore the applicant ought to have been examined as a witness. The learned Judge observed that the facts stated in the complaint were proved by the cross examination of the applicant - complainant himself. The learned Judge also held that in the copy of the complaint supplied to the first and second respondent it was not disclosed that the complaint was filed by the complainant through his Constituted Attorney. The order of acquittal was passed on the aforesaid grounds. - 3 - 3. Criminal application no.234 of 2007 also arises out of a complaint under section 138 of the said Act. This application is also filed for challenging an order of acquittal passed by the learned trial Judge. The learned Trial Judge has relied upon the various decisions of this court. In this case also the complaint was filed through a Constituted Attorney. The learned Judge observed that the complaint is not signed by the applicant-complainant and the applicant has not executed any affidavit in proof of execution of Power of Attorney relied upon in the complaint. 4. The learned counsel for the applicant in criminal application no.1756 of 2007 submitted that in law it is permissible to file a complaint through Power of Attorney holder. He submitted that the complaint can be signed and verified by the Constituted Attorney when the Constituted Attorney has personal knowledge of the transaction. He submitted that in the present case, the Power of Attorney shows that the applicant had agreed to ratify all the acts of the attorney and therefore, in fact there is indemnity provided in the Power of Attorney. He submitted that the learned Judge has committed a gross error by holding that it was mandatory for the applicant to step into the witness box and to prove contents of the complaints. The contents of the complaint were duly proved by the Constituted Attorney of the applicant who was son of the applicant who was conversant with - 4 - the facts of the case. He submitted that the fact that a copy of complaint supplied to accused does not disclose that it was filed through Constituted Attorney is no ground to acquit the accused. He submitted that a very hypertechnical view has been taken by the learned Magistrate. 5. The learned counsel for the applicant in criminal application No.234 of 2007 has invited my attention to various decisions of this court and Apex Court on this aspect. He submitted that this court has consistently held that the complaint under section 138 of the said Act can be filed by the Constituted Attorney of the complainant and the Constituted Attorney can always verify the complaint. 6. The learned counsel for the first respondent in criminal application no.234 of 2007 has supported the impugned Judgment and order and placed reliance on the several decisions of this court. The learned counsel for the 1st and 2nd respondents in criminal application no.1756 of 2007 also supported the impugned order. Before, adverting to various decisions relied upon by the learned counsel for the parties, it will be necessary to refer to the factual aspects of the case. As far as criminal application no.1756 of 2007 is concerned, perusal of the complaint shows that there is nothing mentioned therein to show that the same is filed by the Constituted Attorney of the applicant. The complaint disclosed that 1st and 2nd - 5 - accused had taken a loan of Rs.20,00,000/- from the applicant on 14th February 2003 which was repayable with interest at the rate of 30% p.a. A reference has been made with the bill of exchange drawn by the first respondent which was accepted by the second respondent. The applicant did not step into the witness box and he has examined his Constituted Attorney and son by filing an affidavit in lieu of examination in chief. In paragraph 1 of the affidavit, the Constituted Attorney of the applicant has stated that he was conversant with facts of the case. Perusal of the affidavit shows that he has not stated that he has made transaction on behalf of his father and or that at the time of making loan transaction, he was personally present. It will be necessary to refer to his cross examination. He stated that he had signed the complaint as well as Vakalatnama. He stated that the complaint and the affidavit in lieu of examination in chief have been drafted by his Advocate as per his instructions. He admitted that in the affidavit in lieu of evidence he has stated that the date of Power of Attorney on the basis on which the complaint was filed was 12th January 1998. He stated that there was no other document other than the Power of Attorney dated 12th January 1998. He admitted that the Power of Attorney produced by him was of 5th July 1991. It will be necessary to refer relevant part of the cross examination : "....It is POA dated 12.1.1998. there was no other document - 6 - of POA dated 12.1.1998. There was no other document of POA other than the document of POA dated 12.1.1998. Now the document of POA shown to me is of date 5.7.1991. It is correct to say that there was no POA dated 12.1.1998 authorising me to file the complaint. It is correct to say that there is no POA dated 12.1.1998 authorising me to file the complaint and give evidence. Q.1 It is correct to say that you stated falsely in the affidavit that you were authorised to file the complaint and give evidence on the document POA dated 12.1.1998. Ans I already produced the POA. The date mentioned in my complaint and affidavit wrong by mistake. . The said mistake come to my knowledge on today. It is correct to say that I also brought Civil suit against the accused in respect of same transaction. I verified the plaint of that civil suit as a POA. I can produce the plaint of that civil Suit. It is correct to say that in that civil suit accused allowed to defend unconditionally. It is correct to say that the POA already executed before the transaction. I do the transaction with the accused as a constituted POA." - 7 - 7. In the cross examination he came out with a case that he had given loan to the accused as per the authorisation given to him in terms of the paragraph 13 of the Power of Attorney. However, in paragraph 3 of the affidavit in lieu of examination in chief, he stated as under:- "3. I say that the accused nos.1 and 2 have taken a loan of Rs.20,00,000/- from the complainant and executed an Demand Bill of exchange on 14th February 2003 for valuable consideration of Rs.20,00,000/- for his business purpose and it has to be agreed that the interest @ 30% shall be paid on the said sum of Rs.20,00,000/-...." 8. As far as acceptance of bill of exchange is concerned, no doubt the Constituted Attorney stated that the same was accepted in his presence. In the cross examination he made out a case that he had advanced a loan to the accused which is not the case made out in the affidavit in lieu of examination in chief. He admitted that it is not mentioned in the complaint that he had done the transaction with the accused or that the transaction was completed in his presence. Thus, it is very difficult to accept that the loan was advanced by the Constituted Attorney of the applicant and not by the applicant. The case that the transaction was made by the Constituted attorney was not made out either in the complaint or in the affidavit in lieu of examination in chief. The said - 8 - case was sought to be made out for the first time by the Constituted Attorney of the applicant in the cross examination. Therefore, going by the averments in the complaint as well as in the affidavit in lieu of examination in chief only the applicant had knowledge of loan transaction as he had made transaction. That is the reason why the learned Judge has observed that the applicant himself was an important witness in this case and he has not been examined. 9. Now turning to the facts of the criminal application no.234 of 2007, it will be necessary to refer to the Power of Attorney executed by the applicant-complaint. The Constituted Attorney is the younger brother of the complainant-applicant. The Power of Attorney itself records that the applicant has advanced a sum of Rs.3,35,000/- to the first respondent accused and towards repayment of the said amount, the accused had given three cheques to the applicant. It is stated that the applicant was unable to attend the court of law due to family and business matters. Thus, the Power of Attorney itself shows that the transaction was made by the applicant and not by the Constituted Attorney of the applicant. It will be necessary to refer to the complaint. The complaint is signed by the Constituted Attorney of the applicant. The statement under section 200 of the Code of Criminal Procedure,1973 is of the Constituted attorney. Neither in the complaint nor in the verification statement a case has been - 9 - made out that the Constituted Attorney has entered into the transaction on behalf of the applicant or that he was personally present when the transaction was made. In the Power of Attorney in this case, there is a recital that the actions of the Constituted Attorney will be binding on the applicant. 11. It is true that a consistent view has been taken by this court that in certain circumstances, the complaint under section 138 of the said Act can be filed by the Power of Attorney holder of the payee and his statement can be recorded under section 200 of the said Code. The said decisions are in case of Shanaz D’Souza Vs. Sheikh Ameer Saheeb and another [2007 (3) Mh.LJ. 324) and M/s.G.J.Package another vs. M/s.S.S. sales (2006 Cri.L.J. 214. In case of Shahnaz (supra) the learned Judge of this court has referred to earlier decision of this court in case of G.J.Package (supra). . Paragraph 9 of the said decision reads thus : "9. The view of the Rajasthan High Court has also been accepted by the Apex Court in the case of Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd. and others, 2005 (1) Mh.L.J. (SC) 1170 = AIR 2005 SC 439, in para 21 of the learned Judgement. In Mamtadevi w/o Prafullakumar Bhansali vs. Pushpadevi w/o Kailashkumar Agrawal and another (supra), this court has again reiterated that (i) - 10 - filing of complaint by such person through power of attorney would be perfectly legal and competent, (ii) that the complainant alone being a witness of transaction has himself to depose in support of complaint either at the stage of issuance of process or whenever; (iii) if the transactions are witnessed by the power of attorney himself as an agent of the payee, such power of attorney alone can be a witness and his being a power of attorney cannot disentitle him from being a witness; (iv) when the transactions are witnessed by the complainant and power of attorney or any other witness or witnesses in the whole or in part, all such persons will have to be the witness of the case, and the power of attorney shall not be disentitled from being examined as witness just because he hold a power of attorney. Again this court in G.J.Packaging Private Ltd. and another vs. M/s.S.S.Sales and another 2006 Cri.L.J. 214 has reiterated the position by stating that the conspectus of judicial opinion, therefore, establish a principle that complaint in respect of offence punishable under section 138 of the Act need not be personally filed by the payee or holder in due course. It can be filed by power of attorney of the payee. Where the complainant is a judicial person it can be represented by a natural person to act as a de facto complainant. Where a power of attorney has full knowledge of the transaction, his statement can be recorded by the - 11 - Magistrate for verification of the complaint, for ascertaining the truth of the allegations and to enable him to take a proper decision as to whether the process has to be issued or not. Even if the complaint is signed by a person, who is not properly authorised this defect can be subsequently rectified. The complaint cannot be quashed merely on this ground. Earlier, this court in case of Dr.Pradeep Mohanbay vs. Mr.Minguel CarlosDias, 2000 (2) All.M.R. 664 had held that the complainant could appoint a power of attorney for filing the complaint in view of section 142 of the Act. However, neither the Code of Criminal Procedure nor the Act contemplated that any one can depose for and on behalf of the complainant. In such complaint, the power of attorney is entitled to appear as a witness and depose in respect of facts which are within his knowledge and on the basis of record on which reliance is placed (Emphasis supplied). The court also observed that in that case no objection was taken when the power of attorney was examined and therefore the deposition of the power of attorney could be taken into consideration as a witness." 12. It will be also necessary to refer to the decision of this court in case of Mr.Roy Joseph Creado and others Vs.Shaikh Tamisuddin s/o and others delivered in Criminal application no.1653 of 2003 decided on 1st February 2008. In - 12 - the said decision, this court has considered the law on this aspect. In paragraph 18 of the said decision this court has held thus: "18. There are cases and cases. Each case needs to be examined on the basis of the fact situation obtained therein. In the case in hand, the complaint filed by the Respondent - Sk.Tamisuddin was defective because it was not signed by the complainant - Smt.Saira. The defect was curable during her life time. She could have been asked to sign the complaint. That was not done. The complaint is verified by the Respondent although, he did not state in clear words that he is not only Special Power of Attorney holder but has the full knowledge of the facts in which the cheque was issued by the applicants in the name of Smt.Saira, as a result of liability to discharge the legal debt or money due to her. It appears that gist of the complaint is reproduced as verified statements of Sk.Tamisuddin. The copy of Special Power of Attorney does not show that the Respondent did undertake the liability to indemnify the accused persons if the complaint was found to be frivolous or false. The issuance of process on the basis of such a verified statement is, therefore, illegal and improper." - 13 - 13. Reliance has been also placed on the decision of another learned Single Judge of this court in case of Mamtadevi w/o Prafullakumar Bhansali vs. Pushpadevi w/o Kailashkumar Agrawal and another (2005 2 Mh.L.J. 1003). As far as filing of the complaint by the Constituted Attorney is concerned the said decision takes the same view as taken in case of Shanaz (supra). However, as far as verification is concerned, the learned Single Judge observed that the statement under section 200 of the said Code can be the statement on affidavit. As far as the second aspect regarding the statement under section 200 is concerned the view as taken by the learned Single Judge in the aforesaid case was overruled in the decision in the case of Maharaja Developers vs. Udaysingh Pratapsinghrao Bhonsle (2007 Cri.L.J. 2207). After considering the law on this aspect, the Division Bench held thus : "55. Thus, from the above discussion it is made clear that complaint can be presented by GPA on behalf of the payee, provided, (i) the complaint shall be signed by the payee himself; (ii) there shall be also an affidavit of the complainant in proof of his execution on GPA; added to the production of the said Power of Attorney document; (iii)sworn statement of GPA can be recorded on the date of - 14 - presentation of the complaint; (iv)sworn statement of payee (complainant) shall have to be taken in a future date on his appearance in Court; the Magistrate shall thoroughly examine the statements of GPA holder as well as the original complaint and document produced before him and exercise his discretion vested under Sections 202 and 203 of Cr.P.C. . The above guide-lines are not exhaustive and in other circumstances the Magistrate shall exercise his discretion judiciously and in conformity of other provisions of law applicable." Thus the Division Bench has held that there has to be an affidavit of the complainant in proof of his execution of the general Power of Attorney apart from production of the said general power of attorney. As far as the decision in case of Roy Joseph (supra) is concerned, this court has observed that when the complaint is filed by the Constituted Attorney, it must contain a clause showing that Constituted Attorney has undertaken the liability to indemnify the accused persons if the complaint was found to be frivolous or false. 14. Coming to the peculiar facts of the case, as far as - 15 - application no.1756 of 2007 is concerned, I have already held that there is nothing on record to show that the Constituted Attorney had personal knowledge of the transaction of loan advanced by the applicant to the accused or that he was personally present at that time. The same is the case with the other application. The applicant in both the cases have not deposed before the Court. If this is the factual situation, the ultimate finding recorded by the learned trial Judge that the guilt of the accused under section 138 is not established cannot be faulted with. 15. In the circumstances, no case is made out for grant of leave. Applications are rejected. 16. It is made clear that the observations made in this order are for limited purpose of considering the prayer for grant of special leave to prefer an appeal and none of the observations shall be construed as any finding recorded by this court on the rights and liabilities of the parties. JUDGE JUDGE JUDGE