TaxTMI 
TaxTMI 
TaxTMI 
2015 (3) TMI 1407
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....e said police arrested the petitioner and thereafter, the respondent has paid the cheque amount, and was released by the police, and even after receiving the entire amount, taking advantage of the cheque, a private complaint under Section 138 of the Negotiable Instruments Act, 1881, has been filed on the file of the learned Judicial Magistrate No. I, Tiruppur and to prove the above said facts, respondent has filed Crl.M.P. No. 9295 of 2009 in STC. No. 590 of 2007 on the file of the learned Judicial Magistrate No. 1, Tiruppur, seeking for a direction to examine Ms. Nandhini, the petitioner herein. Though the said application has been opposed by the petitioner, drawee of the cheque, through her power of attorney. By observing that unless and until the petitioner/drawee of the cheque is examined, truth regarding payment of the cheque amount, before the Crime Branch Police, would not come to light and by examining her, no prejudice would be caused, the Court below has allowed the said petition filed under Section 311 Cr.P.C. 4. Though Mr. J. Franklin, learned counsel for the petitioner has assailed the correctness of the order made in Crl.M.P. No. 9295 of 2009 in STC. No. 590 of 2007 ....
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.... knowledge and in respect of which the principal is entitled to be cross-examined." (ii) In R. Arjunan v. Arunachala Gounder reported in 2007 (5) CTC 133 : 2006 (4) LW 520, I have held that in respect of acts committed with the personal knowledge, Power of Attorney cannot speak on behalf of the Principal. Therefore, I opined that it is not permissible to permit the Power of Attorney to represent the Principal to appear and adduce evidence, in respect of acts, which the Principal had personal knowledge of the same. (iii) In Shankar Finance & Investments v. State of AP reported in (2008) 8 SCC 536 : AIR 2009 SC 422, the Supreme Court, while explaining, in what circumstances, the evidence of an attorney holder would be relevant and while dealing with a complaint under section 138 of the Negotiable Instruments Act, 1881 signed by the attorney holder of the payee, held as follows: "A power of attorney holder of the complainant, who does not have personal knowledge, cannot be examined. But where the attorney holder of the complainant is in charge of the business of the complainant and the attorney holder alone is personally aware of the transactions, and the complaint is signed by ....
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....ugh a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder. (f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined. (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readin....
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....orney to "act" on behalf of the principal. The word "acts" employed therein is confined only to "acts" done by the power-of-attorney holder, in exercise of the power granted to him by virtue of the instrument. The term "acts", would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has preferred any "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 acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined. (See: Vidhyadhar v. Manikrao & Anr., AIR 1999 SC 1441; Janki Vashdeo Bhojwani and another v. Indusind Bank Limited and others, (2005) 2 SCC 217; Shankar Finance & Investments v. State of AP, AIR 2009 SC 422; and Man Kaur (Dead) v. Hartar Singh Sangha (2010) 10 SCC 512)." (vii) In A.C. Narayanan v. State of Maharashtra reported in 2013 (11) SCALE 360, the Supreme Court, on reference, framed the question, as follows: "(i) Whether a Power....
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.... their petitions in order to quash the complaints, viz., that the complaints filed by Mr. Lakshman Goel were not maintainable and that the cheques were not given for any debt or liability. In the impugned judgment, it was held that the complaints filed by Mr. Lakshman Goel were not maintainable. The High Court held that it is only an Executive Director of the Company who has the authority to institute legal proceedings. While holding that the reasoning given by the High Court cannot be sustained, this Court held that Section 142 of the N.I. Act provides that a complaint under Section 138 can be made by the payee or the holder in due course of the said cheque. This Court further held that the complaints in question were by the appellant-company who is the payee of the two cheques. After finding that the Court cannot quash a complaint as stated by the High Court, this Court set aside the same and directed the trial Court to proceed with the complaints against Respondent Nos. 1 and 3 therein in accordance with law. 18) Now, let us consider the later decision of this Court in Janki Vashdeo Bhojwani (supra). This case relates to powers of Power of Attorney under the Code of Civil Proc....
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....lowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. 18. The aforesaid judgment was quoted with approval in the case of Ram Prasad v. Hari Narain. It was held that the word "acts" used in Rule 2 of Order 3 CPC 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 knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC. 19. In the case of Pradeep Mohanbay (Dr.) v. Minguel Carlos Dias the Goa Bench of the Bombay High Court held that a power of attorney can file a complaint under Section 138 but cannot depose on behalf of the complainant. He can only appear as a witness. 20. However, in the case of Humberto Luis v. Floriano Armando Luis on which reliance has been placed by the Tribunal in the present case, the High Court took a dissenting view and held that the provisions con....
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....nd of the appellant in Criminal Appeal No. 73 of 2007 is that no complaint can be filed and no cognizance of the complaint can be taken if the complaint is by the power of attorney holder, since it is against Section 200 of the Code and deserves to be rejected. There is no dispute that complaint has to be filed by the complainant as contemplated by Section 200 of the Code, but the said Section does not create any embargo that the attorney holder or legal representative(s) cannot be a complainant. 21) The power of attorney holder is the agent of the grantor. When the grantor authorizes the attorney holder to initiate legal proceedings and the attorney holder accordingly initiates such legal proceedings, he does so as the agent of the grantor and the initiation is by the grantor represented by his attorney holder and not by the attorney holder in his personal capacity. Therefore, where the payee is a proprietary concern, the complaint can be filed by the proprietor of the proprietary concern, describing himself as the sole proprietor of the payee, the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor, and the proprietor or the ....
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....t the transactions then he cannot be examined. However, where the attorney holder of the complainant is in charge of the business of the complainant-payee and the attorney holder alone is personally aware of the transactions, there is no reason why the attorney holder cannot depose as a witness. Nevertheless, an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint. On this count, the fourth question becomes infructuous. 24) In view of the discussion, we are of the opinion that the attorney holder cannot file a complaint in his own name as if he was the complainant, but he can initiate criminal proceedings on behalf of his principal. We also reiterate that where the payee is a proprietary concern, the complaint can be filed (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the "payee"; (ii) the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor. 25) Sim....
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....lainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. (v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person. 27) We answer the reference on the above terms and remit the matter to the appropriate Bench for deciding the case on merits." 6. Record of proceedings shows that revision case is pending from 2011 onwards. The petitioner has obtained stay of the proceedings in STC. No. 590 of 2007 and even after this Court ordered private notice, as early as on 09.09.2011, proof has not been filed for effecting service on the respondent. Thus, it is also evident from the above that it is the petitioner, who has protected the proceedings in STC No. 590 of 2007 on the file of the learned Judicial Magistrate No. I, Tiruppur, and not the respondent. 7. In the light of the decisions of the Hon'ble Supreme Court stated supra, power of attorney can adduce evidence on the facts relating to issuance o....