2022 (9) TMI 316

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.... Private Wealth on 23.11.2017. It is stated in the complaint that CHIPL had approached respondent no. 1 herein through M/s Karvy Private Wealth for booking of a banquet admeasuring 256sq.ft. under an assured buy-back scheme along with profits in the project 'Orrizonte'. It is further stated that that respondent No.1 booked the aforesaid banquet by allegedly paying a sum of Rs. 9,71,667 along with a sum of Rs. 40,810 towards service tax to CHIPL. For this purpose, Mr. Sandha, in his capacity as the then director of CHIPL had signed a Memorandum of Understanding ('MOU') dated 22.07.2015 with respondent No.1 along with her son Amit Gupta/respondent No.2 herein. A per Clause 2 of the said MOU, it was agreed that upon expiry of 24 months from the date of execution of the said MOU, respondent no. 2 would receive a complete refund of the aforesaid amount paid by her along with a premium of Rs. 1,55,467. Pursuant to this, respondent No.1 alleged that CHIPL issued 24 post-dated cheques towards the refund, which were allegedly dishonoured when presented for realization. Respondent No.1 thereafter issued a legal notice dated 14.10.2017 served upon the accused person by registered AD through h....

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....2 as the proceedings were being conducted through Video Conferencing ('VC'). 6. On the next date of hearing, i.e., 03.03.2022 before the learned MM, it is submitted by learned counsel for the complainant/ respondent no.1 herein that the complainant was suffering from serious ailments and that she will not be able to conduct the present case personally. It is further submitted that complainant/respondent No.1 herein had authorised her son Amit Gupta/respondent No.2 herein Special Power of Attorney ('SPA') holder to conduct the prosecution on her behalf with the permission of the Court and placed on record a copy of the special power of attorney dated 02.03.2022 (SPA) along with her medical documents. 7. It is submitted that there is no clause in the SPA which authorizes the SPA Holder to lead evidence on behalf of the complainant/respondent no. 2 herein. It was however submitted that in case the complainant/respondent no. 2 is unwell or infirmed, the Court can appoint a Commission under Sections 283/284 of the Code of Criminal Procedure 1973 ('CrPC') which ought to have been done in the present case in view of Section 142(1)(a) NI Act, which prohibits a Court from taking cogni....

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....as also filed copies of emails along with the reply to show that respondent no. 2 has been an active participant in the transaction between the parties since at the very beginning. 12. This Court has heard the submissions of learned counsel for the parties and perused the record. 13. Learned counsel for the Petitioner submits that respondent no.2 (SPA holder) has neither appeared nor averred at the time of passing of the impugned order that he had personal knowledge about the transactions or cheques in question. There was no assertion as to his specific knowledge in the complaint and therefore, he cannot be cross-examined in place of respondent no. 1 herein. He further submits that there is no clause in the SPA which authorizes the SPA Holder to lead evidence on behalf of the complainant/respondent no.1 herein. He further submits that the medical documents filed along with the SPA related to the period from July to September 2021, the last dated 03.09.2021, well before the date on which the Petitioner was granted the right to cross-examine Respondent No.1. No recent medical document indicating recent change in health/medical conditions was filed alongwith the SPA. Even the co....

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....earned counsel as regards the medical documents and stated that such information had not been brought before the learned trial Court prior to 03.03.2022 as at the point of time the presence of respondent no.1 was not mandatory. 18. Learned counsel for the respondents relies upon the decision of the Hon'ble Supreme Court in A.C. Narayanan v. State of Maharashtra (2014) 11 SCC 790 where it was held as under: "26) While holding that there is no serious conflict between the decisions in MMTC (supra) and Janki Vashdeo Bhojwani (supra), we clarify the position and answer the questions in the following manner: (i) Filing of complaint petition under Section 138 of N. I. Act through power of attorney is perfectly legal and competent. (ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions. (iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder....

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....amination of the President or the Vice-President of India or the Governor of a State or the Administrator of a Union Territory as a witness is necessary for the ends of justice, a commission shall be issued for the examination of such a witness. (2) The Court may, when issuing a commission for the examination of a witness for the prosecution, direct that such amount as the Court considers reasonable to meet the expenses of the accused, including the pleader's fees, be paid by the prosecution." 22. In the case of Ms. Pankajam Ramaswamy vs M.R.Elangovan Criminal Revision Petition No.1330 of 2006 the Hon'ble High Court of Madras opined in a case where the complainant was the resident of Anna Nagar Chennai, the learned Metropolitan Magistrate, Chennai was himself directed to go to the place of the complainant and record her evidence. It was observed in the aforementioned case as under: "...As per the above provision, when the Court feels that the witness cannot be procured without any inconvenience, the Court may dispense with the attendance of the witness and may issue commission for the examination of witness. Of course, recording of evidence on Commission in....