Punjab-Haryana High Court
Daljit Singh vs Jasbir Singh Sandhu on 5 October, 2013
Author: Rekha Mittal
Bench: Rekha Mittal
CRM-M-4455-2012 1
IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
CRM-M-4455-2012
Date of decision : 05.10.2013
Daljit Singh
... Petitioner
Versus
Jasbir Singh Sandhu
... Respondent
CORAM: HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr.H.K.Aurora, Advocate
for the petitioner.
None for the respondent.
REKHA MITTAL, J.(ORAL)
The present petition under Section 482 of the Code of Criminal Procedure (in short 'the Code') has been filed seeking quashing of criminal complaint No.2428/2/2009 dated 17.10.2008 (Annexure P1) and summoning order dated 17.10.2008 (Annexure P2) passed by the Judicial Magistrate Ist Class, Jalandhar.
The brief facts of this case are that Jasbir Singh Sandhu through his attorney Jatinder Sharma (respondent herein) filed a complaint against the petitioner under Section 138 of Negotiable Instruments Act, 1881(in short 'the Act') on the allegations that the petitioner in discharge of his liability towards loan taken by him issued a cheque bearing No.004129 dated 25.5.2008 amounting to Rs.3 lacs drawn on Centurion Bank of Punjab Limited. The cheque, on its presentation to the bank, got dishonoured with the remarks "funds insufficient" vide memo dated 02.09.2008. The drawer Davinder Kumar 2013.10.10 16:27 I attest to the accuracy and integrity of this document CRM-M-4455-2012 2 failed to make payment of cheque amount despite receipt of legal notice issued on 13.09.2008.
Counsel for the petitioner would contend that the complainant has filed the complaint through his alleged attorney Jatinder Sharma without any averment that the attorney has personal knowledge of the transaction in question. It is further submitted that neither in the complaint nor in the statement of Jatinder Sharma recorded during preliminary evidence, there is any reference that Jatinder Sharma has personal knowledge of the facts put forth in the complaint. It is further submitted that in the absence of any such assertion as to the knowledge of the Power of Attorney holder about the transaction in question either in the complaint or in his statement by way of affidavit Ex.CA (Annexure P5 herein), the order passed by the Judicial Magistrate to issue process for the offence punishable under Section 138 of the Act is liable to be set aside. In support of his contention, he has placed reliance upon judgment of the Hon'ble Supreme Court of India in M/s Shankar Finance & Investments Vs. State of Andhra Pradesh & Ors., 2008(3) RCR (Criminal) 885.
The respondent failed to appear to counter the case of the petitioner.
I have heard counsel for the petitioner and gone through the case file.
Jasbir Singh Sandhu filed the complaint under Section 138 of the Act through his attorney Jatinder Sharma. The first question which arises for consideration is whether a complaint under Section 138 of the Act can be filed by payee/ holder of the cheque through an attorney. The matter Davinder Kumar 2013.10.10 16:27 I attest to the accuracy and integrity of this document CRM-M-4455-2012 3 needs no discussion and debate in view of authoritative pronouncement by the Hon'ble Supreme Court of India in M/s Shankar Finance & Investments (supra) relied upon by the petitioner and the latest judgment of the Apex Court in A.C.Narayanan Vs. State of Maharashtra and Anr., Criminal Appeal No.73 of 2007 arising out of S.L.P.(Crl.) No.2724 of 2008 decided on 13.09.2013. In these judgments, it has been explicitly laid down that Power of Attorney holder can be allowed to file a complaint on behalf of the payee / holder of the Negotiable Instrument i.e. cheque. In this view of the matter, I do not find force that the complaint filed by Jasbir Singh Sandhu, the holder of the cheque is liable to be axed for the reason that it has been filed by Attorney holder.
The trial Court called upon the complainant to be examined under Section 200 of the Code before the process was issued to summon the accused (petitioner herein). Jatinder Sharma appeared in the witness box and tendered into evidence his affidavit Ex.CA (Annexure P5 herein). A perusal of averments contained in the complaint and the affidavit tendered by Jatinder Sharma makes it manifest that there is no reference that Jatinder Sharma has personal knowledge of the transaction in question which is the basis for initiating criminal proceedings against the petitioner. The Attorney holder may be allowed to depose for the purpose of issue of process for the offence punishable under Section 138 of the Act, but there is an exception to this rule that when the Power of Attorney holder does not have a personal knowledge about the transaction then he cannot be examined. As in the circumstances of the present case, Jatinder Sharma is not a competent witness to depose about the transaction in question on behalf of the Davinder Kumar 2013.10.10 16:27 I attest to the accuracy and integrity of this document CRM-M-4455-2012 4 complainant, his statement can not become the basis for recording a finding that there is a prima-facie case to issue process against the accused. That being so, the summoning order passed by the trial Court cannot be allowed to sustain.
In view of what has been discussed hereinabove, the petition is partly allowed. The impugned order dated 17.10.2008 whereby the accused has been ordered to be summoned to face proceedings for offence punishable under Section 138 of the Act is set aside and the matter is remitted to the trial Court for decision afresh in regard to issuance of process against the accused (petitioner herein).
(REKHA MITTAL) JUDGE October 05, 2013.
Davinder Kumar Davinder Kumar 2013.10.10 16:27 I attest to the accuracy and integrity of this document