K.C.Bohra v. Sri Durga Lodge Pvt. Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.06.2008C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.1157 of 2002K.C.BohraProprietor:M/s.Hansa Traders,Rep. by POA Hemant Bohra,No.57,Parthasarathy Pettai Street,Opp. Gongress Building, Teynampet,Chennai-600 086. ...Appellant/ComplainantVs.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/AccusedThis Criminal Appeal has been filed under Section 378(4) ofthe Criminal Procedure Code is directed against the judgment dated06.05.2002 rendered by the learned XXIII Metropolitan MagistrateCourt, Saidapet, Chennai in C.C.No.6662 of 1999 acquitting therespondents/accused in respect of an offence punishable underSection 138 of the Negotiable Instrument Act. For Appellant: Mr.R.MohanFor Respondents: No appearance J U D G M E N T This Criminal appeal is directed against the judgment andorder of acquittal dated 06.05.2002 acquitting the respondentsherein who were prosecuted before the Court below for an offencepunishable under Section 138 of Negotiable Instrument Act, 1881 inC.C.No.6662 of 1999, a case instituted on private complaint filedby the appellant herein. https://hcservices.ecourts.gov.in/hcservices/

2. The case of the Complainant/Appellant, in brief, is asfollows:-The appellant/complainant is carrying on the business ofselling electrical goods and appliances in the name and style of"Hansa Traders"(a proprietary concern) at No.57,ParthasarathyPettai Street, Teynampet, Chennai-86. The Second respondent/secondaccused, as a director of the first respondent/first accusedcompany, purchased electrical fittings, fans and other electricalaccessories on behalf of the first respondent/first accused companyfrom the above said business concern of the appellant/complainantand issued a cheque dated 05.08.1998 bearing Cheque No.643003 for asum of Rs.60,515/- drawn on Indian Overseas Bank, Thiruthani Branchtowards the price of the goods purchased. The said cheque waspresented for collection through Lakshmi Vilas Bank, Thousand LightBranch, Chennai(Appellant's Banker) on 01.02.1999. But the samewas returned unpaid by the drawee Bank(Indian Overseas Bank,Thiruthani Branch) on 05.02.1999 with an endorsement "fundsinsufficient". Thereafter, a statutory legal notice demandingpayment of the amount covered by the dishonoured cheque was issuedon 17.02.1999. The second respondent/second accused refused toreceive the same. However, the first respondent/first accusedreceived the said notice and sent a reply on 08.03.1999 containingfalse and untenable allegations. Since, the demand for payment ofthe amount covered by the cheque was not complied with within thestatutory period after the receipt of notice, the offence underSection 138 of the Negotiable Instrument Act became complete andhence the complainant was constrained to prefer the complaint onthe file of the Court below.3. The offence punishable under Section 138 of the NegotiableInstruments Act allegedly committed by the respondents herein wastaken cognizance of by the Court below and the said complaint wasnumbered as C.C.No.6662 of 1999. Mr.Hemant Bohra son of thecomplainant Mr.K.C.Bohra was examined and his statement wasrecorded by the learned Metropolitan Magistrate under Section 200Cr.P.C. before issuing process to the respondents/ accused. Onappearance, the respondents/accused pleaded not guilty. Thelearned Metropolitan Magistrate conducted trial in which twowitnesses were examined as P.W.1 and P.W.2 and eight documents weremarked as Ex-P1 to Ex-P8 on the side of the complainant. No witnesswas examined and no document was marked on the side of therespondents/accused. 4. Ultimately, after considering the evidence, the learnedMetropolitan Magistrate came to the conclusion that the complainanthad failed to prove the charges against the respondentsherein/accused and acquitted them by impugned judgment dated06.05.2002. The reasons assigned by the learned MetropolitanMagistrate for coming to the said conclusions are:- https://hcservices.ecourts.gov.in/hcservices/ i) The person who at the first instance gave the statementunder Section 200 of Cr.P.C. and later on deposed as P.W.1 onbehalf of the complainant was not truly authorized by thecomplainant and hence the prosecution based on the privatecomplaint is vitiated; ii) The cheque in question was not presented for payment inthe drawee bank within the period of its validity (within a periodof six months from the date of its issue) in accordance with lawand hence the complaint itself is misconceived and incompetent.5. The learned counsel for the appellant argued that thejudgment of the Court below was not only erroneous, but also anexample of total non-application of mind to the relevant provisionsof law; that the Court below, while correctly holding that thecomplaint itself was signed and preferred by K.C.Bohra, Proprietorof M/s.Hansa Traders and that it was his son Hemant Bohra who gavestatement under Section 200 of Cr.P.C. and later on deposed asP.W.1 on behalf of K.C.Bohra, committed an error in holding that hewas not truly authorized by K.C.Bohra to give evidence on hisbehalf; that the observation made by the Court below to the effectthat Ex-P1 was not a valid document authorizing P.W.1 - HemantBohra to conduct the case on behalf of the complainant K.C.Bohrawas erroneous; that the Court below erred in assuming that thePower of Attorney should be in a particular format and that thesame had resulted in an erroneous findings that P.W.1 was not aperson authorized by the complainant to give evidence on hisbehalf. Arguing further, the learned counsel for the appellantcontended that the Court below totally misconceived the proviso (a)to Section 138 of the negotiable Instruments Act and committed anerror in calculating the period of six months from the date ofcheque in ignorance of the provision contained is Section 9 of theGeneral Clauses Act,1897; that while computing the period of sixmonths from the date of cheque the date on which the cheque wasdrawn (the date found in the cheque) should have been excluded;that the Court below failed to see that the cheque had reached thedrawee Bank on the last day of the period of six months and it wasreturned unpaid on the said date itself; that the Court below cameto a wrong conclusion that the cheque was not presented within sixmonths from the date of its drawal because of the non-application of its mind to the provision contained in Section 9 ofthe General Clauses Act,1897 and that in any event, the saidfinding should be held erroneous and unsustainable. 6. The submissions made by the learned counsel for therespondents in reply to the above said arguments advanced onbehalf of the appellant were also heard and this Court gave itsanxious considerations to the same. 7. The respondents 1 and 2 herein were prosecuted by theappellant herein for an alleged offence punishable under Section https://hcservices.ecourts.gov.in/hcservices/ 138 of the Negotiable Instrument Act. In fact the complaint wassigned and presented by K.C.Bohra, Proprietor of M/s.HansaTraders. However, after taking cognisance and before issuingprocess to the respondents/accused, the Court below did not examinethe complainant(K.C.Bohra). On the other hand, the statement ofhis son Hemant Bohra was recorded on 21.09.1999 and after recordinghis statement, the Court below chose to issue process to therespondents herein/accused. After appearance of the respondentsherein/accused, the son of the complainant Mr.Hemant Bohra wasexamined as P.W.1 and documents were marked on behalf of thecomplainant. A letter of authorization allegedly issued by thecomplainant K.C.Bohra dated 01.09.1999 has been marked as Ex.P1.The said letter is relied on by the appellant/complainant as thedocument authorising P.W.1 - Hemant Bohra to appear on behalf ofthe complainant and give evidence. The contents of Ex-P1 arereproduced here under:- "I K.C.Bohra do hereby authorize my son Hemant Bohrato appear on my behalf in the criminal case filed by meand also to give evidence on my behalf. The power isgiven without any force or coercion but with my fullconsent."8. The learned Metropolitan Magistrate, after admitting thesaid document and marking it as Ex-P1 through P.W.1, without evenreserving consideration on its admissibility at a later stage, atlast at the conclusion of trial, has turned around and held thatthe said document is not a valid document of authorization toconduct trial and to give evidence on behalf of the complainant.The said finding shown to be one of the grounds for acquitting therespondents herein/accused is challenged as untenable. The learnedcounsel for the appellant placed reliance on a judgment of alearned Single Judge of this court (Mr.Justice Thangaraj.J. as hethen was) in "Modern Denim Limited Vs- Lucas TVS Ltd" reported in1999 (III) CTC page 143 and the Judgment of a Division Bench ofthis 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", afterreferring to several earlier decisions in this regard, this Courtheld that authorization need not be given before preferring thecomplaint and that such an authorization could be validly giveneven subsequent to the filing of the complaint. Of course, thesaid 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 absenceof authorization to the person preferring the complaint on behalfof 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 theDivision Bench of this Court in K.Gopalakrishnan Vs. Karunakaran,rep. by Power of Attorney Holder, Dhandapani. It is theobservation of the Division Bench of this Court that the expression"Complainant" has not been defined either in Cr.P.C. or Power ofAttorney Act and that complainant means the person who presentscomplaint to Court or makes complaint to the Court. The furtherobservation made therein is to the effect that a person whophysically presents the complaint is deemed to be the complainantand that hence the examination of the Power of Attorney upon oathat the time of presentation of the complaint and reduction of hisstatement into writing is sufficient compliance of Section 200Cr.P.C. 11. Relying on the judgment of the Honourable Supreme Court inM/s.M.M.T.C. Ltd, Vs- M/s.Medchl Chemicals Pharma (p) Limited.,reported in 2002 Criminal Law Journal 266, the Division Bench hasheld "even though the General Power of Attorney at initial stagefailed to produce the deed of power of Attorney or the Affidavit ofthe complainant in proof of execution of power of Attorney, thesame can be rectified by producing the same at a later stage of theproceedings as and when the validity of the Power of Attorney isquestioned by the accused and the Court could then be called uponto decide the genuineness or validity of the Power of Attorney."While considering the question: "whether the sworn statement of thecomplainant is also required to be recorded on a future date on hisappearance in the Court to enable the Court to exercise itsdiscretion under Sections 202 and 203 of the Code of CriminalProcedure? - the Division Bench held that if the complaint waspresented through an agent holding the Power of Attorney, the agenthimself should be construed to be the complainant and that the lawdid not make it necessary to examine the principal at a laterstage. When the complaint was preferred through an agent holdingPower of Attorney, for all practical purposes the agent holdingPower of Attorney could be construed to be the payee or holder indue course as the case may be was the reasons assigned by theDivision Bench to arrive at such a conclusion.12. All the above said aspects are not germane to the issueinvolved in the case on hand. In this case complaint was signed andpreferred not by an agent having the Power of Attorney but by thepayee himself viz., K.C.Bohra, Proprietor of M/s. Hansa Traders.Only after the Court takes cognizance of the offence by taking thecomplaint on file, the question of examination of the complainanton oath will arise. In this case, after taking the complaint onfile, issue of process was postponed rightly till the examinationof the complainant was over. However, though the complaint waspreferred by the original payee, a number of adjournments weregiven by the Court below for the examination of the complainant andat last, the statement of his son was recorded on 21.09.1999subsequent to which process was issued to the respondents/accused. https://hcservices.ecourts.gov.in/hcservices/

13. The two judgments discussed above dealt with the questionof a complaint preferred on behalf of a company, as a company is ajuristic person has a necessity to act through a human agency. Itwas held therein that a complaint could be preferred by a personwho was looking after the affairs of the company, namely Manager,Director, Partner, etc. Only in such cases, it was held that theabsence of proper authorization by way of Power of Attorney couldbe rectified subsequently when the authority of the person whopreferred the complaint on behalf of the company was questioned bythe accused at a later stage of the proceeding. The saidobservation is applicable only when the complaint is presented bysuch 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 ofSection 200 of Cr.P.C. to record the statement of an agent of thecomplainant (payee). In K.Gopalakrishnan's case decided by theDivision Bench of this court, it was the agent of the payee, whoactually presented the complaint and hence his statement recordedunder Section 200 Cr.P.C. was held to be sufficient compliance ofthe requirement of the said section. That is why it was also heldthat recording of the statement of the payee at a later point oftime when he appears was not necessary. The reason assignedtherein for holding so was, that the agent who physically presentedthe complaint should be held to be the payee or holder in duecourse. 14. The facts of the case on hand are different. Thecomplaint was presented by the Payee K.C.Bohra. After thecomplaint was received by the learned Judicial Magistrate, issue ofprocess to the accused was postponed till the examination of thecomplainant for which the matter was adjourned several times. Atlast, Hemant Bohra son of K.C.Bohra appeared before the learnedJudicial Magistrate on 21.09.1999, that is nearly after six monthsfrom the date of presentation of the complaint, and produced aletter allegedly issued by K.C.Bohra (marked as Ex.P1) authorizingHemant Bohra to appear on his behalf in this Criminal case and giveevidence on his behalf. The entire contents of the letter has beenextracted in an earlier paragraph of this judgment. The saidletter 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 aspecified person to act for and in the name of the personexecuting in it." 16. In the light of the said inclusive definition, thecontention of the learned counsel for the appellant that it is notnecessary that the Power of Attorney should be in a particularformat 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 ofHemant Bohra, the alleged Power of Attorney of the complainant andreducing his statement into writing would amount to propercompliance of the requirement of Section 200 Cr.P.C. is to beconsidered. As pointed out supra, the complaint was not preferredby Hemant Bohra, as the agent of K.C.Bohra. The complaint was alsonot preferred in the name of Hemant Bohra. Therefore, by no stretchof imagination Hemant Bohra could be construed to be thecomplainant. Section 200 Cr.P.C. mandates that, the magistratetaking congnizance shall, before issuing process, examine thecomplainant upon oath and reduce the substance of such anexamination into writing and that the same must be signed by thecomplainant and also by the Magistrate. 17. In this regard, it shall be useful to refer to thejudgment of Rajasthan High Court (Jaipur Bench) in "Ram Prasad v.Hari Narain and others" reported in "AIR 1998 RAJASTHAN 185". Inthe said judgment, the following observations have been made.18. Similar view was expressed by the Hon'ble Apex court inJanki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. andothers reported in 2005 (3) CTC 128. "In our view, the word "acts"employed in Order 3, Rules 1 & 2 of Code of Civil Procedureconfines only in respect of "acts" done by the Power of Attorneyholder in exercise of power granted by the instrument. The term"acts" should not include deposing in place instead of theprincipal. In other words, if the Power of Attorney holder hasrender some "acts" in pursuance of the Power of Attorney, he maydepose for the principal in respect of such acts, but he cannotdepose for the principal for the acts done by the principal and notby him. Similarly, he cannot depose for principal in respect ofthe matter which only the principal can have a personal knowledgeand in respect of which the principal is entitled to be cross-examined" — was the observation made by the Hon'ble Apex court inthe 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 Attorneyholder could appear, plead and act on behalf of the party, but hecannot become a witness on behalf of the party and that no onecould delegate the power to enter the witness box on behalf ofhimself or to appear in a box and that to appear in a witness boxaltogether different act and that a general Power of Attorneyholder could not be allowed to appear as a witness on behalf of theplaintiff in the capacity of the plaintiff. The said view was quoted with approval by the Hon'ble Apexcourt in 2005(3)CTC 128 in Janki Vashdeo Bhojwani and another Vs.Indusind Bank Ltd. and others discussed above. The contrary viewexpressed by Bombay High Court in Humberto Luis v. Florino ArmandoLuis, 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 CivilProcedure could not disentitle the Power of Attorney holder todepose on behalf of his principal and that the word "act" appearingin the said rule would take within its sweep "depose", was alsoconsidered by the Hon'ble Supreme Court and the Hon'ble SupremeCourt disagreed with the said view of Bombay High Court.Therefore, it is quite obvious that a Power of Attorney holdercannot depose on behalf of the complainant as the complainant. Thenecessary corollary is that the statement of the Power of Attorneycannot be substituted for the statement of the complainant when thePower of Attorney has not actually presented the complaint. The word "acts" used in Rule 2 of Order III of Code of CivilProcedure does not include the act of Power of Attorneyholder to appear as a witness on behalf of a party. Powerof Attorney holder of a party can appear only as a witnessin his personal capacity and whatever he has knowledge aboutthe case he can stood on oath but he cannot appear as anwitness on behalf of the party in the capacity of thatparty". 19. For all the reasons stated above, this court comes to theconclusion that the finding of the court below that the mandatoryprovision found in Section 200 Cr.P.C. providing a conditionprecedent for issuing process was not followed which pleading tothe conclusion that the criminal proceeding initiated against therespondent stands vitiated and that the complaint deserves to bedismissed is well founded. This court finds no defect or infirmityin the judgment and order of acquittal dated 06.05.2002 rendered bythe learned XXIII Metropolitan Magistrate Court, Saidapet, Chennaiin C.C.No.6662 of 1999.20. the next contention raised by the learned counsel for theappellant is that the other reason for the dismissal of thecomplaint assigned by the court below based on the question oflimitation was unsustainable. The learned counsel for theappellant pointed out the fact that the cheque was issued on05.08.1998 and it was presented for collection to the bankers ofthe appellant on 01.02.1999 itself and contended that the chequewas presented well within six months (within the period of itsvalidity). It is the further contention of the learned counsel forthe appellant that in any event, the cheque had reached the draweebank, namely Indian Overseas Bank, Thiruttani branch, on 05.02.1999itself and the same was returned with an endorsement "fundsinsufficient" on the said date itself. According to the submissionmade by the learned counsel for the appellant the date on which thecheque was drawn should be excluded and the date on which thecheque reached the drawee bank should be included in calculatingthe period of six months (period of validity) and that the learnedMetropolitan Magistrate erroneously included the date of drawal ofthe 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 onwhich the cheque was issued should be excluded for the purpose ofcalculating the period of limitation. The said section reads asfollows:"Commencement and termination of time — In any (CentralAct) or Regulation made after the commencement of this Act,it shall be sufficient, for the purpose of excluding thefirst in a series of days or any other period of time, touse the word "from", and, for the purpose of including thelast in a series of days or any other period of time, to usethe word "to"."22. The first contention made by the learned counsel for theappellant in this regard that the presentation of the cheque to thebanker of the appellant for collection, within the period ofvalidity was sufficient compliance of Proviso (a) to Section 138 ofthe Negotiable Instruments Act, 1881 cannot be countenanced. Thesaid question was considered by the Hon'ble Apex court in ShriIshar Alloy Steels Ltd. Vs. Jayaswals Neco Ltd reported in (2001) 3Supreme Court Cases 609. It was held therein that the chequeshould reach the drawee bank within the period of validity. In thesaid case, a cheque drawn on 21.07.1997 was presented in thepayee's bank for collection on 20.01.1998 and the said chequereached the drawee bank on 24.01.1998, admittedly after six monthsfrom the date on which the cheque became payable. The Hon'bleSupreme Court held that the expression "the bank" occurring inProviso (a) to Section 138 of the Negotiable Instruments Act, 1881meant the drawee bank and not the collecting bank of the payee. Inline with the said view expressed by the Hon'ble Supreme Court,this court hereby holds that the contention raised by the learnedcounsel for the appellant that the presentation of the cheque forcollection to the appellant's bank within the validity period wasenough, has got to be rejected as untenable. 23. However, in this case, on facts, it is found that thecheque in question reached the drawee bank within the validityperiod (six months). The cheque was drawn on 05.08.1998. Itreached the drawee bank through the collecting bank on 05.02.1999.The cheque was returned unpaid on 05.02.1999. As per Section 9 ofthe General Clauses Act, 1897, the date of cheque should beexcluded and the date of presentation for payment should beincluded. If the date of cheque, namely 05.08.1998 is excluded forthe purpose of computing period of six months, it shall be obviousthat the cheque reached the drawee bank on the last day of theperiod of six months and hence within the period of validity of thecheque. Therefore, the second contention raised by the learnedcounsel for the appellant in this regard has got to becountenanced. The finding of the court below that the cheque wasnot presented within six months (period of validity) is erroneousand the same has got to be reversed. https://hcservices.ecourts.gov.in/hcservices/

24. Though, this court has come to the conclusion that one ofthe reasons assigned by the trial court for that dismissal of thecomplaint, namely the cheque was presented in the drawee bank forpayment after the expiry of its validity period (six months) iserroneous and hence the same is liable to be reversed, the otherreason assigned by the trial court that the criminal proceedinginitiated on private complaint stood vitiated because of the non-compliance of the mandatory provision found in Section 200 Cr.P.C.for the dismissal of the complaint has been found to be correct.The final verdict of the learned Metropolitan Magistrate dismissingthe complaint cannot be held erroneous and the same has got to beconfirmed on that ground alone. Accordingly, the Criminal Appealfails and the same is dismissed.Sd/Asst. Registrar/true copy/Sub Asst. RegistrarasrTo 1. The XXIII Metropolitan Magistrate Court, Saidapet, Chennai.2. -do- 'thro' The Chief Metropolitan Magistrate Egmore, Chennai-8.+1 cc to Mr.R.Mohan, Advocate, SR.No.32756Judgment inCrl.A.No.1157 of 2002BK (CO)SMK/14.7.08