CRR No.2489 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRR No.2489 of 2008 (O&M) Date of decision:- 26.08.2011 Mukesh Aggarwal ....Petitioner Vs. Rajinder Kumar Pahwa and another ....Respondents CORAM: HON'BLE MR. JUSTICE A.N. JINDAL 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present:- Ms. Anju Sharma, Advocate, for Mr. Amit Dhawan, Advocate, for the petitioner. Mr. Anil Chawla, Advocate, for the respondents. ***** A.N. JINDAL, J (ORAL) Assailed in this petition is the judgment dated 17.07.2008 passed by the Sessions Judge, Amritsar, accepting the appeal preferred by the accused-respondents (hereinafter referred to as the respondents) against the judgment of conviction dated 15.09.2007 passed by the Judicial Magistrate, Ist Class, Amritsar and acquitting respondent No.1 of the charge framed against him. The Judicial Magistrate, Ist Class, Amritsar had CRR No.2489 of 2008 (O&M) 2 convicted and sentenced respondent No.1 to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5000/- under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'), whereas on challenge to the said judgment, the Sessions Judge, Amritsar, accepted the appeal; set aside the impugned judgment and acquitted the accused of the charges framed against them. The facts, in brief, are that respondent No.1, in order to discharge his financial liability, had issued a cheque Ex.CW2/3 for a sum of Rs.1,00,000/- on 30.01.2001, drawn on Punjab National Bank, Akali Market, Amritsar, in favour of the complainant-petitioner (hereinafter referred to as 'the petitioner'), which, on presentation, was returned uncashed with the remarks “accounts closed” vide memo Ex.CW2/4. A legal notice Ex.CW3/2 was served upon respondent No.1 on 13.08.2001 for making payment, but the same remained unresponded. Thereafter, the present complaint was filed. After recording of the preliminary evidence, the respondents were summoned. The petitioner examined Kapil Dev Dhawan (CW-1), Uttam Singh, Clerk (CW-2), Satish Kumar (CW- 3) and closed his evidence. When examined under Section 313 Cr.P.C., respondent No.1 denied all the allegations and pleaded his false implication. However, in defence, he examined Vijay Kumar, Cashier (DW-1). The trial resulted into conviction, whereas the Appellate Court observed that there was no evidence under Section 254 Cr.P.C., to prove the ingredients of offence Under CRR No.2489 of 2008 (O&M) 3 Section 138 of the Act, because the complainant did not appear in the witness box to prove the advancement of loan; to deny, if the loan was not returned and the cheque was issued in his favour in discharge of his financial liability. It was further observed that the testimony of Satish Aggarwal (CW-3), who was in the status of special power of attorney, was not sufficient to prove the offence. He could only state whatever was in his personal knowledge, but the factum with regard to advancing of the loan by the petitioner to the respondents and issuing of the cheque by respondent No.1 in his favour and dishonouring of the same by the bank, cannot be said to be the facts in the personal knowledge of the attorney. As such, the Appellate Court accepted the appeal; set aside the impugned judgment and acquitted the accused. Arguments heard. Records perused. The case of the petitioner is that respondent No.1 had issued a cheque in his favour in discharge of his legal liability against a loan of Rs.1,00,000/-, taken by him from the petitioner on 30.09.2000. The cheque was issued by respondent No.1 on 30.01.2001 for a sum of Rs.1,00,000/-. The petitioner presented the cheque to his banker on 30.07.2001, but he was informed by the banker that the cheque was dishonoured and it was sent back with the remarks “account closed”. The petitioner served a legal notice on 13.08.2001, but respondent No.1 failed to make the payment despite the legal notice. It is also a fact that the petitioner himself did not appear in the witness box, but he appointed Satish Aggarwal (CW-3) as special attorney on 19.10.2001. However, he was appointed special power of attorney after filing of the complaint CRR No.2489 of 2008 (O&M) 4 (the complaint was filed on 13.09.2001). Therefore, he was not supposed to know about the facts, which occurred prior to his appointment as attorney. He has also not stated, if he was accompanying the petitioner at the time when the amount was advanced to respondent No.1 and the cheque was issued in response to the said amount. The attorney was also not cited as a witness in the complaint and was also not examined at the time of preliminary evidence. As a matter of fact, no list of witnesses appears to have been appended with the complaint. Satish Aggarwal (CW-3) admits that he has no joint business with the petitioner-complainant and has no knowledge about the details of the borrowings or the recovery, if any, made by Mukesh Aggarwal- complainant. He has not explained as to how he knows about the dealings of the complainant and respondent No.1. He admits that except this transaction in hand, he has no knowledge about other transactions between Mukesh Aggarwal and respondent No.1. He states that he does not know when the cheque was issued by respondent No.1 to the petitioner. He also does not know, if Mukesh Aggarwal maintains any account books or not. He admits that he cannot bring the account books/ledger of the petitioner. In the aforesaid circumstances of the case, no reliance could be placed on the testimony of special power of attorney for the reasons that (i) he had not lent money to respondent No.1 and he is not aggrieved, if the money is not received back by him; (ii) He is not the person, who was entitled to get back the money; (iii) He was not entitled to legally claim any amount due under the cheque in question; (iv) Respondent No.1 did not hand over any cheque to him and promised him that it would be honoured; (v) He is not the CRR No.2489 of 2008 (O&M) 5 person, who had issued legal notice to respondent No.1; (vi) He also did not present the cheque for encashment in the bank. He came into the picture after the complaint was filed and preliminary evidence was recorded; (vii) He is not a witness to the transaction which had taken place between the complainant and respondent No.1. He did not act as attorney at any time prior or on 02.12.2004 when he made the statement in the Court on 30.01.2004, though the power of attorney was executed in favour of Satish Aggarwal on 19.10.2001. No reasons have been assigned as to why the petitioner-Mukesh Aggarwal withheld himself for not appearing in the witness box. The power of attorney was not competent to appear in respect of the matters, which are not within his personal knowledge. The deed of attorney, on perusal, appears to be conferring special power, but it refers to many acts and not a particular act. Therefore, the same being general power of attorney, was required to be registered. As such, the same being unregistered is inadmissible in evidence. On careful examination of the said deed, it transpires that it does not confer power to appear in the witness box. Thus, the first Appellate Court has rightly opined that the statement made by power of attorney in such circumstances, cannot take place as an evidence of the principal complainant. It was observed by Hon'ble the Supreme Court in case Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley, 2004 (12) SCC 509 that application under Section 302 Cr.P.C. to continue the prosecution, could not be filed by the power of attorney holder or the heirs of the deceased-complainant CRR No.2489 of 2008 (O&M) 6 in a prosecution under Section 138 of the Act, without any permission of the Court. The settled law is that the complaint may not essentially be required to be filed by the complainant himself, but complainant certainly has to step into the witness box to prove the allegations levelled against the accused. No doubt, the power of attorney could appear in the witness box, yet his testimony could be appreciated to a limited extent i.e. qua the facts within his personal knowledge. It has been observed by Hon'ble Kerala High Court in case Anirudhan Vs. Phillip Jacob, 2006 (4) Criminal Court Cases 130 (Kerala) that power of attorney holder is competent to speak of facts within his exclusive personal knowledge. Similarly, it was observed by Hon'ble Madhya Pradesh High Court in the case of Mahendra Kumar Vs. Armstrong & another, 2005 (3) Civil Court Cases 75 that if the attorney has appeared as a witness at the stage of taking cognizance, his testimony could be considered for the purposes of registration of the complaint/issuance of process under Section 204 Cr.P.C., but for further proceeding, examination of the complainant is a must. In another case titled as M/s G.I. Packaging Private Ltd. and another Vs. M/s S.S. Sales and another, 2006 (2) S.L.J. (Bombay) 900, the Hon'ble Bombay High Court has observed that power of attorney cannot depose on behalf of the complainant, but he can appear as a witness on behalf of the complainant and depose about the facts in his personal knowledge. It is also well settled by now that if the party, bound to appear to prove the allegations, does not enter into the CRR No.2489 of 2008 (O&M) 7 witness box, then the inference would be drawn that the plea set up by him is not correct. The first Appellate Court has rightly observed that in the absence of examination of the complainant under Section 254 Cr.P.C., it cannot be said that there is any evidence, which indicates that the petitioner had advanced a loan to respondent No.1 and later in order to repay the loan, respondent No.1 had issued a cheque Ex.CW2/3 in favour of the petitioner and it was in discharge of his legally enforceable liability. No evidence could be said to be on the record with regard to presentation of the cheque by the petitioner and issuing of the notice by him. It was only he, who could prove these facts, which were in his personal knowledge. As such, while agreeing with the findings returned by the first Appellate Court, it may be observed that there are no reasons to make a different opinion than what was formed by the first Appellate Court. Resultantly, finding no merit in the petition, the same is hereby dismissed. (A.N.JINDAL) 26th August, 2011 JUDGE ajp