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Madhya Pradesh High Court

Shri Mahendra Jain Proprietor vs Mita India Pvt. Ltd A Company Registered ... on 4 April, 2019

-1-                                  MCRC   NO.45556/2018

           HIGH COURT OF MADHYA PRADESH,
                      BENCH AT INDORE
                     MCRC NO.45556/2018
     Shri Mahendra Jain, Proprietor M/s M.K. Electronics and
                       Electricals, Dewas
                               vs.
                       Mita India Pvt. Ltd.
04.04.2019 (INDORE):
        Shri Sumeet Samvatsar, learned counsel for the
applicant.
        Shri L.Sawhney, learned counsel for the respondent.
        With consent, arguments heard finally.
                           ORDER

This is a petition under section 482 Cr.P.C for quashment of order dated 26.09.2018 passed by Ivth A.S.J, Dewas affirming the order dated 30.01.2018 and 23.07.2018 passed by JMFC, Dewas in criminal complaint No.91/2017 whereby the objection regarding Kavindersingh to depose on behalf of complainant/company was rejected.

2. As per the prosecution case, the complainant company (respondent) M/s Mita India Pvt. Ltd. is a company registered under the provisions of the Companies Act and indulges in manufacturing of tractor and tractor parts. This company was setting up its manufacturing unit at Dewas and engaged the applicant Mahendra Jain for shifting of 33 K.V -2- MCRC NO.45556/2018 electrical overhead line at Dewas plant. After completion of work invoices were raised to the respondent company for two amounts of Rs.2,51,278/- and Rs.2,24,728/-. The complainant company made payments against the invoices. However, the complainant company by mistake made payment for the second time and when it was brought to the notice of the applicant the applicant agreed to refund the excess amount and gave two cheques which were, however, dishonoured on account of stop payment directions. The respondent through its representative Ripanjit Singh Kohli filed a complaint under section 138 read with section 141/142 of the NI Act. The aforesaid company had executed a power of attorney in favour of Kavindersingh Anand. The power of attorney holder Kavindersingh Anand executed a special power of attorney in favour of Ripanjit Singh Kohli and Ripanjit Singh Kohli on the basis of special power of attorney had filed a complaint against the applicant. The applicant filed an application on 09.01.2018 stating that complaint is not filed by authorized person and, therefore, the complaint can not be proceeded. After hearing the parties, this application was dismissed by the trial Court vide order dated 30.01.2018. The applicant thereafter filed another application on 12.07.2018 that there is no averment in the complaint that Kavindersingh Anand is having any knowledge about the facts of the transaction, hence Kavinder -3- MCRC NO.45556/2018 singh cannot depose before the Court. This application was again dismissed by the trial Court on 23.07.2018. A criminal revision was then filed by the applicant which was, however, dismissed vide order dated 26.09.2018. It is against the aforesaid order dated 26.09.2018, 23.07.2018 and 30.01.2018 that the applicant has filed the present petition under section 482 Cr.P.C.

3. The main grounds contained in the petition are that first- Kavinder Singh Anand did not have the authority to sub delegate special power of attorney to Ripanjit Singh Kohli. Second- Kavinder Singh Anand was not having any personal knowledge about the facts of the case, hence he was not authorized to depose on behalf of the company. Third- the issues regarding incompetency to file the complaint goes to the root of the matter and learned Courts below failed to appreciate the contention urged by the applicant.

4. Terming the impugned orders as illegal it has been prayed that the same be set aside and the petition filed by the applicant be allowed in the interest of justice.

5. The question before this Court is whether the impugned order dated 30.01.2018, 23.07.2018 passed by the trial Court and order dated 26.09.2018 passed by the revisional Court having passed contrary to the provisions of law deserve to be set aside.

6. The first question arises for consideration is whether Kavinder Singh Anand holding general power of attorney was authorized to sub delegate his powers to Ripanjit singh as special power of attorney? Learned counsel took the Court through the language of general power of attorney, copy of which is placed on record. The Court was also taken through the minutes of the meeting of the Board of Directors of the company dated 01.05.2010, copy of which is also placed on record in which it has been resolved at the end that "the draft power of attorney in favour of Kavinder Singh, Director of the company be and is hereby proved." Learned counsel for the applicant points out that the resolution no where prescribes that Kavinder Singh shall have the power to appoint special power of attorney by way of sub delegation.

7. Further, the language employed in general power of attorney was also read over by the learned counsel. The following excerpts are important for consideration:

"------- that the company do hereby nominate, constitute and appoint its Director Mr.Kavinder Singh Anand and it is true and lawful attorney in its name and on its behalf to execute and perform all or any of the acts, deeds and things herein after mentioned that is to say:

------------- to appoint counsel or special attorney(s) for conducting all cases or otherwise to do all other acts and -5- MCRC NO.45556/2018 things for the due prosecution or defence of all such legal or quasi-legal proceedings anywhere in the world

----------- to the highest civil, criminal, revenue, labour or referal courts-----".

8. Learned counsel for the applicant submits that the word "special attorney(s)" does not mean special power of attorney. The word attorney is used in the same sense as a counsel who can conduct prosecution on behalf of the company.

9. Per contra, learned counsel for the respondent submits that the word special attorneys means and includes authority to appoint any person with special power of attorney who shall be authorized to conduct prosecution.

10. A perusal of the language employed in the general power of attorney in the excerpts mentioned above shows that the word "special attorney" has been used along side the word counsel and the authority of Kavinder Singh was to appoint counsel or special attorneys for the task enumerated in the general power of attorney. Appointment of a counsel does not amount to sub delegation of the authority of general power of attorney. Counsel when appointed could act on behalf of the company for the specific purpose of filing applications, making submissions etc. in the particular case and did not acquire authority to run affairs of the company.

11. A perusal of the language employed in the general power of attorney in the excerpts mentioned above shows that the word "special attorney" has been used along side the word "counsel". The word "attorney" has been described in dictionary as a person, typically a lawyer appointed to act for other in business or legal matter.

12. Kavinder singh was not authorized to appoint any other officer of the company to represent on behalf of the company since he was not given the authority to sub delegate his powers by the board of directors. Had such power to sub delegate been bestowed on him, the same would have found place in General Power of Attorney. The learned counsel for petitioner has referred to Full Bench judgment of Apex Court A.C.Narayanan vs. State of Maharashtra and another (2014) 11 SCC 790 in which it has been held in para-32 that authority of power of attorney holder to sub delegate functions must be explicitly mentioned in the General Power of Attorney. Another citation of George Joseph vs. HMT (International) Ltd. (2015) ACD 83 has also been submitted in which it has been laid down that letter of authorization or power of attorney executed by the Chairman without delegation of the power would invalidate any proceeding brought without necessary authority.

13. Thus, Ripanjit Singh Kohli could not have been authorized to represent the company because this amounted -7- MCRC NO.45556/2018 to sub delegation of powers by Kavinder Singh who did not have such power in view of no such sanction given by the board of directors.

14. Hence, there is substance in the submissions of learned counsel for the petitioner that complaint could not have been filed through Ripanjit Singh Kohli.

15. Consequently, the order dated 30.01.2018 passed by the trial Court is set aside.

16. The second question is whether Kavinder Singh was authorized to depose on behalf of the company, the trial Court and the revisional Court have held that Kavinder Singh was authorized to depose as he was the Managing Director of the company and was conversant with the day to today affairs of the company. However, learned counsel for the applicant has submitted that it was imperative that the complaint should have contained pleading to the effect that Kavinder Singh Anand was having personal knowledge about the impugned transaction. In the citation of A.C.Narayanan (supra) para 33.3 is specifically relevant regarding this aspect. In this para it has been observed that it is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction "explicitly in the complaint" and the power of attorney holder who was no knowledge regarding the transaction cannot be examined as a witness in the case.

17. Learned counsel has pointed out that the complaint filed under section 138 NI Act no where encompasses such averment that Kavinder singh Anand was having knowledge about the transaction between the parties and, therefore, he cannot depose on behalf of the company. Learned counsel for the respondent on the other hand submits that Kavinder Singh Anand has submitted his affidavit which contains the averment of him having knowledge about the transaction.

18. However, it is quite clear that statements in affidavit are separate from the statements in the complaint. The averment of Kavinder Singh having knowledge about the transaction should have been contained in the body of the complaint and filing a separate affidavit would not serve the purpose and would not fill up the aforesaid deficiency in the complaint. Learned counsel for the respondent has referred to a citation of Mahendra Kumar vs. Armstrong and another 2005 (2) MPLJ 419 as also Chandrika (Smt.) through her Power of Attorney Holder vs. State of Rajasthan and another published in Manupatra in support of his averments. However, in view of Full Bench judgment of Hon'ble Supreme Court in A.C.Narayanan (supra), this citation would stand negatived. Consequently, the submission of applicant that Kavinder Singh Anand is not authorized to depose on behalf of the company is also accepted. Consequently, the trial Court's order dated -9- MCRC NO.45556/2018 23.07.2018 and revisional Court's order dated 26.09.2018 are also set aside.

19. In the result, the petition is allowed and the consequences shall follow accordingly.

                                   (SHAILENDRA SHUKLA)
                                            JUDGE
          Digitally signed by Hari Kumar
          Nair
          Date: 2019.04.08 11:40:05
hk/       +05'30'