Heard learned counsel for the revisionist as well as learned AGA and perused the record.
On 18.5.2012, when the case was taken up, learned counsel for respondent no. 2, Jeet Singh, was not present; therefore, the case was listed peremptorily in the next cause list. Thereafter the case came up on the cause list on 25.5.12. On that date also, the learned counsel for respondent no. 2 was not present. Therefore, it was heard in his absence and orders were reserved.
This revision has been preferred against the judgement and order dated 29.08.2003 passed by Sri S.K.S. Yadav, Addl. District and Sessions Judge, Court No. 5, Varanasi, in Crl. Revision No. 176 of 2003 (Jeet Singh Vs. State of U.P. and others.
The facts in brief are that respondent no. 2 issued a cheque of Rs. 4 lacs in favour of M/s. Krishna Securities and Investements, Varanasi, (for short, the firm). The said cheque, drawn on SBI, Asi Branch, Varanasi, was presented before the Indian Overseas Bank, Cantt. Branch, Varanasi. The said cheque was dishonoured by the concerned bank. Upon that, the revisionist-manager of the firm preferred a complaint in the court of the Vh ACJM, Varanasi, being case no. 1667 of 2001: Col. Lal Ji Chaubey Vs. Jeet Singh, in which his statement under section 200 Cr.P.C. was recorded and respondent no. 2 was summoned, by order dated 5.5.2001.
Against the said summoning order, respondent no. 2 moved an application under section 204 Cr.P.C, which was registered as Case No. 119 of 2002. This application was rejected by the trial court by its order dated 9.5.2003. Aggrieved, respondent no. 2 preferred a revision, being Crl. Revision No. 176 of 2003: Jeet Singh Vs. State of U.P. and another. This revision was allowed by the revisional court by its order dated 29.8.2003, setting aside the trial court's order dated 9.5.2003.
Aggrieved by the aforesaid order of the lower revisional court, the present revision has been preferred by the complainant-revisionist, Lt. Col. Lalji Chaubey, mainly on the ground that the impugned order is illegal, arbitrary, perverse and without jurisdiction because the revisionist (complainant) is a power-of-attorney holder of the firm (M/s. Krishna Securities and Investments) and the sole proprietor of the firm, Mr. Krishnakant Dixit has executed in his favour a power-of-attorney to function on his behalf and he has full authority to file complainant, etc. Therefore, the impugned order of the revisional court is incorrect and that of the lower court is totally correct.
Before going into the arguments in detail placed before me by the revisionist, it is necessary to mention certain admitted facts:
There is no dispute about the fact that respondent no. 2 had issued the cheque in question (bearing no. 700789 dated 27.5.1999) for the aforesaid sum in favour of the firm, which was dishonoured when it was presented before the Indian Overseas Bank, Cantt. Branch, Varanasi. Upon that, a notice was given by the complainant demanding the amount of the cheque. When the said amount was not paid, the complaint in question was lodged.
No doubt, Section 142-A of the Negotiable Instruments Act (in short, the Act) makes it clear that the Court shall not take cognizance of any offence punishable under Section 138 of the Act, except on a complaint in writing made by the payee or the holder-in-due course of the cheque, as the case may be. Section 142-A makes it quite clear that this section is laying down a provision as to how the cognizance of an offence is to be taken. This provision makes it quite clear that the offence punishable under section 138 is not a cognizable offence as contemplated by the Cr.P.C. In the case of a cognizable offence, as contemplated under the Cr.P.C., it is a well-settled law that anybody can set the law in motion by lodging a complaint, but in view of the Section 142 of the Act, the cognizance can be taken only in case if the complaint is lodged either by the payee or the holder-in-due course of the negotiable instrument.
As it is an admitted fact that the complaint in question was lodged by the power-of-attorney holder of the original payee, it would be necessary to refer to the provisions of Section 2 of the Powers-of Attorney Act. Section 2 of the Powers-of Attorney Act is quoted hereunder:
?2. Execution under power-of-attorney.- The donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.
This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force.?
Thus, Section 2, just-quoted, makes it amply clear that an act done or committed by a holder of power-of-attorney is presumed in law to be done or committed by the person who executes such power. Therefore, in view of the specific provisions of this section, it would be presumed that the complaint lodged by the holder of power-of-attorney is the complaint lodged by the payee.
Sri Krishnakant Dixit, the sole proprietor of the firm in question, issued a general power-of-attorney in favour of the revisionist-complainant, Lt. Col. Lalji Chaubey, on 15.1.1998, in which he has given power to him to deal with the court cases. He executed another power-of-attorney in favour of him ( Lt. Col. Lalji Chaubey) on 31.1.2003 giving general power as well as specific power, having all legal authority, to file and pursue criminal and civil suits in the court connected with the terminal. This second power-of-attorney was given after filing of the complaint in question.
In regard to the power-of-attorney, given after filing of the complaint, Hon'ble Apex Court, in 2002 (1) JIC 1984 (SC), has held that if there was no authority to file a complaint at the time of it was lodged, this defect can be rectified by a letter giving authority to file the complaint.
In the present case, though a general power-of-attorney was already given to the complainant (revisionist) to file any complaint, by the second power-of-attorney he had been given full power to do the same; thus, if there was any deficiency in the first power-of-attorney, the same was removed by the second power-of-attorney.
Every person has a right to appoint an agent for any purpose, except in cases where an act to be performed is personal in character or in cases of a public office or is an act involving fiduciary obligations. In paragraph 15 of the AIR 1956 Supreme Court 604: Ravulu Subba Rao and others Vs. Commr. Of Income Tax, Madras, the following conclusion has been drawn by their lordship:
?15. Then, there is the contention of the appellant that the Rules in question are repugnant to S.2, Powers-of-Attorney Act, 7 of 1882, and are therefore ultra vires. In addition to the reasons given above in support of the conclusion that the rule of the common law was not intended to operate in the field occupied by S. 26-A, there is a further and a more compelling reason why this contention should not be accepted. It is that there is, in fact, no conflict between the two statutory provisions.
To understand the scope of S.2, Powers-of-Attorney Act, it is necessary to refer to the history of this legislation. Under the common law of England, an agent having authority to execute an instrument must sign in the name of the principal if he is to be bound. If the agent signs the deed in his name albeit as agent, he is the person who is regarded as party to the document and not the principal. It is the agent alone that can enforce the deed, and it is he that will be liable on it. Vide In re International Contract Co. (1871) 6 CH A 525 (k); Schack v. Antony (1813) 1 M & S 573: 105 ER 214 (1), Halsbury's Laws of England, Edn. 3, Vol 1, p. 217, and Bowstead on Agency, Edn. 10, p. 93. To remove the hardships resulting from this state of the law, the Conveyancing and Law of Property Act, 1881 (44 and 45, Vict. Chap. 41) enacted S. 46, which is as follows:
?(1) The donee of a power-of-attorney may, if he thinks fit, execute or do any assurance, instrument, or thing in and with his own name and signature and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, instrument, and thing so executed and done shall be as effectual in law, to all intents, as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof.
2.This section applies to powers of attorney created by instruments executed either before or after the commencement of this Act?.
The Indian Legislature immediately followed suit, and enacted the Powers-of-Attorney Act 7 of 1882 incorporating in S. 2 therein word for word, S. 46 of the English Act. The object of this section is to effectuate instruments executed by an agent but not in accordance with the rule of the common law and the enactment is more procedural than substantive. It does not confer on a person a right to act through agents. It presupposes that the agent has the authority to act on behalf of the principal, and protects acts done by him in exercise of that authority but in his own name.?
In 2006 CRL.L.J. 4365:K. Gopalakrishnan Vs. Karunakaran, a Division Bench of the Madras High Court has held that if the complaint signed by the power-of-attorney holder in his own name, though not on behalf of the complainant, is maintainable and valid in law. Thus, it is clear that according to Section 2 of the Powers-of-Attorney Act, 1882, the power-of-attorney holder can do anything in his own name and signature and every instrument of power-of-attorney shall be effectual in law as if it has been executed or done by the donee of the power.
It must be remembered that Section 142 of the Act does not lay down that the complaint must be filed by the payee personally. It is clear from the reading of the section that the complaint can be filed by the payee himself or by the holder-in-due course or the holder of the power-of-attorney. In view of the aforesaid, learned Sessions Judge has not considered and looked into this aspect of the matter properly.
In the result, the present revision stands allowed. The impugned order dated 29.08.2003 passed by Sri S.K.S. Yadav, Addl. District and Sessions Judge, Court No. 5, Varanasi, in Crl. Revision No. 176 of 2003 (Jeet Singh Vs. State of U.P. and others is set aside, and the complaint, filed in the court of the Vth ACJM, Varanasi, being case no. 1667 of 2001: Col. Lal Ji Chaubey Vs. Jeet Singh, is restored to the file of the Vth ACJM, Varanasi, who shall proceed to deal with the complain in accordance with law.
Order Date :- 19.7.2012 sks-grade iv