Karnataka High Court
Dr. Mallikarjun Chatnalli vs Sanjeev Kumar S/O Shivasharanappa on 28 September, 2022
Author: P.N.Desai
Bench: P.N.Desai
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IN T HE HIG H C OU RT OF KA RNAT AKA
KAL AB UR AG I BE NC H
D AT ED T HIS T HE 2 8 T H D AY OF SE PT E MB ER, 202 2
BE FORE
THE HON'B LE MR. J UST IC E P .N.D E SA I
C RIM IN AL A PPE A L N o. 200122/2019
BETWEEN
DR. MALLIKARJUN CHATNALLI
AGE: MAJOR, OCC: MEDICAL OFFICER/
EYE SURGEON,
R/O. BASAVAJYOTI NETRALS,
NEAR NEHARU STADIUM BIDAR,
THROUGH HIS S.P. HOLDER
DEEPAK S/O SHIVARAJ DHANSHETTY,
R/AT BEHIND HP GAS
NEHARU STADIUM, BIDAR.
...APPELLANT
(BY SRI.R.S.LAGALI, ADVOCATE)
AND
SANJEEV KUMAR S/O SHIVASHARANAPPA
MAJOR, OCC: BUSINESS,
R/O. NANDI COLONY, NEAR LIC OFFICE,
BIDAR, DIST: BIDAR-585401.
...RESPONDENT
(BY SRI.SANDEEP V. PATIL, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C. PRAYING TO ALLOW THIS APPEAL BY SETTING ASIDE
THE JUDGMENT DATED:13.09.2019 IN CRIMINAL CASE
NO.1246/2017, ON THE FILE OF THE II-ADDITIONAL CIVIL
JUDGE/JMFC-II BIDAR.
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THIS A PPEA L C OM ING ON FOR A D MIS SI ON T HIS DA Y,
THE COU RT DE LIV ERED TH E FOL LOWING:
JU DG EMENT
This appeal is filed challenging the dismissal of
the complaint i.e. judg ment dated 13.09 .2019 in
Crimin al Ca se No.1246/2017 by II-Addl. Civil Judg e
& JMFC-II, Bid ar.
2. The app ellan t w as the co mplainant and
respond ent was the accused b efore th e T rial Court.
They will be referred as s uch in ap pear fo r
conven ience.
3. The co mplainant through the p ower of
attorney ho ld er filed a comp laint und er S ection 200
of Cr.P.C. for the offence p unishab le und er Section
138 read with Section 142 of Negotiable Instrum ent s
Act, (hereinafter referred to as 'N. I.Act' for short).
4. It is alleg ed that this resp onden t/accu sed
is know n to him and fo r the p urpose of h is business
he us ed to b arrow the amou nt and retu rn th e sam e
within agreed period . Th e accused was in volved in a
real estate and other b usin ess. It is furth er
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contend ed that the accused advanced a loan of
Rs.42 ,21,000/- and the accused promised to rep ay
the same in November 2016. But in sp ite of request,
he did not repay the amount, but he issued a chequ e
bearing No.465925 d ated 15.12.2016 for about
Rs.42 ,21,000/-, drawn fro m Corporation Bank
Branc h Bid ar, in favou r of complainant and asked
him to present the sam e. Accordingly, the
complainant presented th e cheque, b ut it w as
return ed w ith an endors ement as 'Fu nds Insufficient'
as p er m emo dated 31.12.2016.
5. Then, the complain ant req ues ted the
respond ent to repay the amount. As h e did not p ay
the amount, th e complain ant issu ed legal notice on
18.01.2017, wh ich was return ed as duly served on
accused on 20.01.2017, but th e accused did not
reply th e sam e, nor p aid the cheq ue amou nt.
Therefo re, the complaint is to be filed after exp iry of
fifteen d ays and within 90 days from the date of
caus e of action. But however, there is so me delay on
his p art. Then, he filed the comp laint along with
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app lication for condon ation of delay and with a
prayer to punish th e respondent/ accused.
6. The Trial Cou rt records indicate that along
with complaint, the comp lain ant has filed
interlocu tory app lication und er Section 142 (proviso)
read with Section 473 of Cr.P.C. to cond one th e
delay along with affid avit. As the comp lainan t
eng aged in h is p rofess ional work as bus y Med ical
Officer/Eye S urg eo n and also as p er assu rance given
by the accused to arrange th e funds to ho nou r th e
chequ e and also due to non-receip t of p ostal
acknow ledgement from post offic e ab out service of
notice, there is a delay. Hence, he prayed to
condon e th e delay. It app ears thereafter, th e sworn
sta tement of power of attorney holder of th e
complainant was reco rded and summons were issued
to the accused.
7. The plea of th e accused w as record ed.
Then, the comp lainant thereafter g ave evid ence as
PW.1 and got marked five docum ents as Exs.P1 to
P5. After record ing 313 Cr.P.C. s tatemen t of accu sed
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and hearing the arg uments, learned JMFC, d ismissed
the comp laint. Ag grieved by the sam e, th e
complainant/ appellant has f iled this app eal.
8. Heard S ri.R.S.Lagali, learned counsel for
the appellant and Sri.S andeep V. Patil, learned
counsel fo r th e respo ndent.
9. Learned co unsel for th e app ellant argued
that though th e learned JMFC has raised seven
points fo r consideration, b ut h e h as not answered
point Nos.1 to 4 and only answered poin t Nos.5 and
6 and hold ing th at th e power of attorney holder is
not competent as he h as no personal knowledg e
abo ut transaction and there is no sufficient grounds
to cond one th e delay, hence, comp laint w as
dismiss ed. Learned counsel further argued that, su ch
procedu re followed by the learn ed JMFC is illegal.
10. Learned co unsel for th e appellant further
arg ued that there is a delay of 2 mo nths 27 days in
filing th e comp lain t. Becau se, the app ellant is a
busy Med ical Practitioner and Eye-S urg eon and w as
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occupied in his p rofess ional engag emen t and work,
so he could not file the complaint within th e
stipulated p eriod and he has ap poin ted h is Manag er
as h is Power of Attorney Holder.
11. The Trial Court h as erred and c oming to
conclus ion that the said Pow er o f Attorney Holder is
not comp etent to g ive evid ence. The judgment of
the Ho n'ble Sup reme Cou rt is mis interp reted. Th e
complainant himself has stated that Power of
Atto rney Hold er is w itnes s to th e transaction. So , h e
being Manager has transac ted the cheq ue and he is
comp eten t to give evid ence.
12. He further argu ed that the Trial Court h as
erred in giving reasons on ly on two p oints and it is
erred in not answering to other points. Hence, h e
prayed to allow the appeal and set aside the order.
13. Ag ainst this, learn ed coun sel for
respond ent supp orted the ord er of the learn ed JMFC
and also relied on the same jud gment, w herein th e
Hon'b le Suprem e Court d eals with th e evidentiary
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valu e of Pow er of Atto rney Holder. Th erefore,
though Power of Atto rney Holder c an file a
complaint, but it is the comp lain ant who should have
come before the Court and d epose before the Co urt.
14. The learned cou nsel further arg ued th at
the delay is not sufficien tly exp lained . Therefore, th e
Trial Cou rt aft er co nsidering the said poin ts fo r
consideration, h as rightly d ism issed th e complain t
and there is no n eed to interf ere with the impugned
judgm ent. Hence, prayed to dismiss the ap p eal.
15. I h ave peru sed the ap peal m emo along
with T rial Co urt Records.
16. The ord er sh eet and case file o f the Trial
Court indicates th at the comp laint is f iled by Power
of Atto rney Holder one Deepak S/o Sh ivaraj
Dhansh etty on 01.08.2017. It was d irected to b e
listed as PCR. It is also evid ent that along with said
complaint, he has filed an application fo r
condon ation of delay und er Section 142 (proviso)
read with Section 473 of Cr.P.C. and affidavit w as
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also filed. Thereafter, sworn statement of power of
attorney of comp lain ant was record ed . He has
prod uced orig inal d eed of Power of Attorn ey, h e is
authorised to g ive evid ence. He has also p rodu ced
chequ e, dishonour memo issued by Ban k, legal
notice with postal receip ts, p ostal track
consignm ent.
17. It is also evid ent that the accused h as
filed app lication under S ectio n 203 read with Section
258 of Cr.P.C. and Section 142 of N.I.Act to dismiss
the co mplaint.
18. The Co urt b y its order d ated 08.01.2019
dismiss ed th e said ap plic ation holding th at alread y
the Court h as ta ken cognizance and comp lainant has
filed th e app lication for delay in f iling the complaint
and issued summons and after hearing the counsel,
the Trial Court h as reg istered the case. The accu sed
has not filed any ob jections to app lication for delay
no r cross- examined PW.1 . T heref ore, th e Court held
that only a fter considering the statem ents o n oath of
the comp lainant, if th ere is no sufficient grounds for
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proceed ing the Court can d ism iss the complaint. The
Court further observed that comp lainan t has
sufficient g round s to proc eed ag ainst th e accused for
offence und er Section 138, the Court cannot dismis s
the comp laint. Accordingly, the s aid ap plic ation w as
rejected by Trial Court.
19. How ever, afterward s it ap pears p ower of
attorney hold er w as PW.1 examin ed and go t marked
five d ocumen ts. Th e statement of acc used und er
Section 313 Cr.P.C. was reco rded, he h as d enied
evid ence ag ains t him. It ap p ears learned JMFC
framed six points for cons ideratio n as under:
1. Wh ether th e complainant pro ves that
Ex.P1-cheque has been issu ed by the
accused tow ards discharg e of legal
liab ility?
2. Wh ether th e complainant pro ves that
Ex.P1-cheque W AS dishonoured on its
presentatio n fo r ins uf ficient fun ds in
the account maintained by the
accused ?
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3. Wh ether the complain ant has
complied with the mand atory
provisio ns of Section 138(a) to (c) of
Negoti able Ins trumen ts Act?
4. Wh ether th e compl ainan t proves
beyo nd doubt that the accused
without having sufficient fu nds in his
acco unt, is su ed E x.P1-c heque
towards disc harg e of his liability and
failed to make good to the
compl ainan t after its dishonour withi n
the stipulated pe riod and thereb y the
accused has committed an offence
punishable und er Section 138 of N.I.
Act?
5. Wh ether the complainan t proves that,
the power-of-attorn ey h as personal
knowledge of transactions and he is
competent to depose in this case on
beh alf complainant?
6. Wh ether th e complainan t has s hown
sufficient and reasonable grou nds to
condon e th e d elay?
7. Wh at o rder?
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But he has not chosen to answ er poin t Nos.1 to 4,
but answered only point Nos.5 and 6 and d ism issed
the co mplaint.
20. In my considered view , the said app ro ach
of the learn ed J MFC is illeg al and contrary to th e
settled principles of law. The order sheet dated
03.06.2017 show s that th e sworn statement of th e
power of attorney hold er of complain ant h as been
recorded and documents were got marked as Exs.P1
to P5. On careful perusal of the comp laint and
material placed on reco rd, the learned JMFC has
come to the co nclus ion that the comp lainant has
filed the complain t und er Section 200 of Cr.P.C.,
within the prescribed p eriod . Accord ingly, th e
learn ed JMFC has taken th e cognizance und er
Section 138 of the N.I.A ct and he has com e to th e
conclus ion that there is sufficient g round to pro ceed
ag ainst the acc used and as such, issued summons to
the accused. Therefore, it is evid ent from the ord er
dated 03.06.2017 that the learned JMFC h as alread y
taken cogniz ance and proceeded against th e
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accused . It is also held that the complaint is within
the time. It ap pears that th e learned JMFC h as not
app lied h is mind to the cas e p ap ers and verified the
case prop erly. No where in th e ord er sheet there is
whisp er about filing an ap plication for co ndonation of
delay. It appears blindly the ab ove dismis sal ord er is
passed.
21. It is the settled princip les of law th at the
offences under S ection 138 of N.I.Act, is econo mic
offence. Th e N.I. act w as am ended and the chequ e
transac tions w ere g iven more t eeth, so that th e
banking transactions will not be affected . Keep ing in
mind the nature of trans actions of cheq ue, Section
142(B) of the N.I. Act w as also amend ed b y ad ding
the pro viso for condo nation of delay. If th e
complaint is not filed with in th e tim e p rescribed
und er Section 13 8 of N.I.Ac t. Th erefo re, as th e Court
has alread y record ed the evid ence of comp lainan t
and rec orded the statement of the accused as
requ ired under 313 Cr.P.C. and at the time of final
hearing, Court can not ho ld that th e complaint is not
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filed with in th e p eriod of limitation. That exerc ise
should be done only at the pre-co gnizance stag e and
that stag e has already gon e. Th e learned JMFC has
proceed ed to record sworn statement of th e
complainant u nder Section 200 of Cr.P.C., which is a
post-cognizance stag e. Tw ice th e learned JMFC held
that the complaint is in-time and comp laint cannot
be dismissed on the grou nd of lim itation.
22. Learn ed cou nsel for the p etitio ner relied
on the d ecision of Hon'b le Supreme Court in the c ase
of A. C.Narayanan Vs. State of Maharashtr a and
Anr. Reported in 2013 AIR SCW 6807, w herein th e
Hon'b le Sup reme Cou rt has consid ered th e
evid entiary value of power of atto rney holder
evid ence. At p aragrap h No.26 referring to its earlier
decis ion in the case of Janaki Vashde o Bho jwani
and Anr. Vs. Indusind Bank Ltd., and Ors. (2005
(2) SCC 217) and others at p aragrap h No.26 it is
held as und er:
"26. While holding that there is no serio us
conflict between the decision s i n MMTC (AIR
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2002 SC 182: 2001 AIR SCW 4793) (supra) and
Jan ki Vas hd eo Bhojwani (AIR 2005 SC 439:
2004 AIR SCW 7064) (supra), we cl arify the
position and answer the qu estio ns in the
following man ner.
(i) Filing of complaint peti tion und er
Section 138 o f N.I Ac t throu gh power of
attorney is perfectly leg al and co mpeten t.
(ii) The Pow er of Attorney h older can
depose and v erify on o ath b efo re th e Cou rt
in o rder to prove th e contents of the
compl aint. However, the power of attorney
holder must have witnessed the
transac tion as an age nt of the
payee/hold er in due co urse or possess due
knowledg e regarding th e said transaction s.
(iii) It is req uired by th e co mplai nant to
make specific assertion as to the
knowledg e of the power of attorney holder
in the said transaction explicitly in the
com c plaint and the power of attorney
holder who h as no knowledge regard ing
the tran s action s c annot be exam ined as a
witness in the case.
(iv) In th e lig ht of section 145 of N.I Act,
it is open to the Magistrate to rely upon
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the verification in the fo rm of affidavi t
filed by the complainan t in support of the
compl aint und er Section 138 of the N.I Act
and the Magistra te is nei ther mand atorily
obliged to call upon th e complainan t to
rem ain present before the Co urt, no r to
examine the complainan t of his witnes s
upon o ath for taking the d ecisio n whether
or not to issu e proces s o n the complain t
und er Sec tion 13 8 of the N.I. A ct.
(v) The function s und er the g eneral power
of attorney cannot be deleg ated to another
person without speci fic clau se permitting
the same in th e power of attorney.
Neverth eless, the gen eral power of
attorney itself can be cancelled and b e
given to another person"
23. In th e abo ve referred decision , th e poin t
No.2 is th at power of attorn ey holder can dep ose
and verify on oath before the Court in order to
prove th e contents of the complaint. However, the
power of attorn ey mu st h ave w itnessed the
transac tion as an ag ent of th e p ayee/ho lder in d ue
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course or possess du e knowledge with reg ard to the
said trans action.
24. In this case the complainan t in his
affid avit in sworn statem ent has stated th at h e know
the facts and circumstances of th e case and he has
sta ted that h e being the m anag er working u nder th e
complainant h as presented the ch eque on b ehalf of
the comp lainant for en cashm ent of th e sam e. H e has
sta ted that he h as prod uced the docum ents to show
that the accused in ord er to cheat the comp lainant
has no t p aid th e amou nt. The power of attorney
holder has also stated the reasons for delay. The
ord er sheet also ind ic ates that on 10.07 .2018, th e
complainant-pow er of attorney hold er and accu sed
were p resent and accused plea w as record ed and
case is po sted for d efen ce evid ence. The earlier
dates order sh eet shows that the accused remained
absent fo r several d ates and NB W was issu ed. It is
seen that the matter was posted for d efence
evid ence. It is held that sufficient time was given,
then the d efen ce evidence was taken as ' Nil' on
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26.07.2018 and the case was posted for final
arg umen ts.
25. Then app lication under S ection 203 R/w
258 of Cr.P.C., came to be filed by the accused and
the sam e was dismissed. Th ereaf ter, again case w as
posted for argum ents, ag ain the accused remained
absent and NBW was issu ed to accused. Ag ain th e
accused app eared wh en th e case is posted fo r
hearing the arg um ents. Then ag a in NBW was issued
and ag ain th e case is posted for record ing th e
evid ence of accused u nder Section 313 Cr.P.C., as it
was not r ecord ed and the case was posted for
judgm ent and th e jud gment of dismissal was passed.
The en tire p roc eedings and proced ure followed b y
the JM FC is illegal and cap ricio us.
26. It is to be stated here that when th e
complaint is f iled, it is the duty of the Court to verify
whether the complaint is filed within th e time as
requ ired under Section 138 of N.I.Act. If th ere is any
delay th e Cou rt h as to verify whether th e
condon ation of delay application is filed . Th en only
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after condoning the d elay, the Court h as to proceed
further for reco rding swo rn statement. O nce th e
sworn statem ent is record ed and if court is satisfied
that th ere is a p rima facie material b ased on sworn
sta tement of complainan t and other docum ent, then
the Court has to take cognizance and proceed furth er
und er the provisions of Sections 200, 201, 202, 203
and 204 of Cr.P.C. Thereafter, s ummons to b e issued
to accused. If accused is ap peared , then h is plea has
to be record ed by putting substanc e of accusation to
the accus ed. T hereafter the Court has to post th e
case for reco rding the main evidence of th e
complainant. It is in p ractice in some Cou rt that th e
evid ence wh ich was alread y given by th e
complainant at the time of sworn statemen t would b e
treated as his examination-in -chief and if th e
complainant has no further evid ence and requests
the Court to treat the s ame as his exam ination-in-
chief evidence, th e Court may p roceed with the c ase
to post the m atter for cross-examinatio n and if th e
cross-examin ation is comp leted then the statement
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of accus ed as required und er Section 313 Cr.P.C is
to be recorded. If the accused pleads that he intends
to lead defence evid ence, an op portun ity will have to
be given to the accused to lead defence accused.
Thereafter the Court sh all hear b oth the p arties and
pass the judg ment.
27. But in this case very strange and unknown
procedu re is followed by the learn ed JMFC. W ithout
even mentioning when examination-ch ief-evid ence
was recorded , whether cross-ex amination of
complainant is taken as nil, nothing is stated in
ord er sheet. Th e Court h as proc eeded to p ass th e
judgm ent statin g that the accu sed has not cross-
exam ined th e complain ant/PW.1 . In sp ite of not
cross-examin ing the pow er of attorney holder of
complainant who se evidence on oath has remained
unch alleng ed b y accused/ resp ondent the Trial Cou rt
held th at power of atto rney hold er evid en ce cannot
be accepted an d hen ce there is delay. It is also
evid ent from th e Trial Court reco rds that earlier th e
case w as p osted for arg uments even w ithout
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recording the statement of accused under Section
313 Cr.P.C., Again statemen t of acc us ed under
Section 313 Cr.P.C. was recorded and p rayer to lead
defence w as rej ected and cas e w as posted fo r
judgm ent.
28. This appro ach of the Court shows that the
Court without fo llow ing mandatory pro visions under
Cr.P.C. w as in hurry for d ispos al of the m atter
somehow w ithout ap plying its mind and w ithout
follow ing the p roced ure as stated in the N.I. Act also
for trial of sum mons c ase under Cr.P.C. fro m Section
200 Cr.P.C. onwards. After taking cog nizance again
dismiss ing the complaint as tim e b arred is illeg al.
Therefo re, the entire jud gment suffers from
illeg ality. It is an arb itrary exercise of judicial
discretion. Therefore, such a jud gmen t d oes not
sta nd to reaso n, is liable to be set aside.
Accordingly, I p ass th e following:
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ORDER
(i) The ap p eal is allowed .
(ii) The impug ned ju dgment p assed in Criminal Case No.1246/2017 d ated 13.09.2019 by the II Ad dition al Civil Judge and JMFC-II Bidar is hereb y set asid e. Th e co mplaint is restored to its original file.
(iii) The T rial Court shall p ro vide an opportunity to th e comp lain ant to addu ce his sid e evid ence, if any, if he chooses , if complainant does no t lead any further evid ence, provid e an opportun ity to the accused to cros s-examine the complainan t or his pow er of attorney holder within the time limit and th en g ive an opportu nity to accused to lead his defence evidenc e, if he chooses, then p roceed furth er for the prog ress of th e case in acco rd anc e with procedu re presc ribed in Code of Criminal Procedu re for T rial of Cases instituted 22 otherw ise than pr Police Rep ort and also at Chap ter XV of Cr.P.C.
Sd/-
JUDGE Sdu/HJ