Gulf Asphalt Private Limited Known As ... vs Dipesh Sinh Kishanchandra Rao & on 8 May, 2015

[Cites 32, Cited by 6]

Gujarat High Court

Gulf Asphalt Private Limited Known As ... vs Dipesh Sinh Kishanchandra Rao & on 8 May, 2015

Bench: J.B.Pardiwala

       R/SCR.A/5562/2014                             CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5562 of 2014

FOR APPROVAL AND SIGNATURE:



HONOURABLE MR.JUSTICE J.B.PARDIWALA

==========================================================

1    Whether Reporters of Local Papers may be allowed to
     see the judgment ?                                         Yes

2    To be referred to the Reporter or not ?
                                                                Yes
3    Whether their Lordships wish to see the fair copy of the
     judgment ?                                                     No

4    Whether this case involves a substantial question of law
     as to the interpretation of the Constitution of India or
                                                                    No
     any order made thereunder ?

     Circulate to all Judicial Magistrates

==========================================================
    GULF ASPHALT PRIVATE LIMITED KNOWN AS ASPAM PETRONERGY
                       PVT. LTD....Applicant(s)
                              Versus
        DIPESH SINH KISHANCHANDRA RAO & 1....Respondent(s)
==========================================================
Appearance:
MR AR GUPTA, ADVOCATE for the Applicant(s) No. 1
MS HETVI H SANCHETI, ADVOCATE for the Respondent(s) No. 1
==========================================================

           CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                           Date : 08/05/2015


                           CAV JUDGMENT

Page 1 of 26 R/SCR.A/5562/2014 CAV JUDGMENT

1. By this application under Article 227 of the Constitution of India, the applicant - original complainant calls in question the legality and validity of the order dated 16.10.2014 passed by the learned Additional Sessions Judge, Court No.3, City Civil and Sessions Court, Ahmedabad in the Criminal Revision Application No.191 of 2014, by which the learned Sessions Judge allowed the revision application filed by the respondent No.1 herein - original accused quashing and setting aside the order dated 03.04.2014 passed by the learned Additional Chief Metropolitan Magistrate, Court No.28, Ahmedabad in the Criminal Case No.2592 of 2010 permitting the complainant to be substituted.

2. The facts giving rise to this application are as under:

2.1 A sole proprietorship firm viz. "Aspam Petronergy Private Limited" through its proprietor filed a private complaint against the respondent No.1 - the accused under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act"), which came to be registered as the Criminal Case No.2592 of 2010.

3. On filing of the complaint, the learned Magistrate took cognizance upon the same and ordered issue of process against the accused for the offence punishable under Section 138 of the Act.

4. During the pendency of the trial, the proprietary concern got converted into a private limited company namely, "Aspam Petronergy Private Limited".

Page 2 of 26 R/SCR.A/5562/2014 CAV JUDGMENT

5. Since the complaint was filed in the name of the proprietary concern through its proprietor and at a later stage, the proprietary concern got converted into a private limited company, the private limited company through its authorized signatory preferred an application Exh.3 before the trial Court to substitute itself as a complainant in place of the original proprietary concern.

6. The application Exh.3 came to be allowed by the trial Court permitting the private limited company to be substituted as the original complainant for the purpose of proceeding further with the complaint.

7. The respondent No.1 - the original accused being dissatisfied with the order passed by the trial Court below Exh.3 preferred a Criminal Revision Application No.191 of 2014 and challenged the order passed by the trial Court below Exh.3.

8. The Revisional Court, vide order dated 16.10.2014, allowed the revision application and quashed the order passed by the trial Court below Exh.3.

9. The applicant - original complainant being dissatisfied has come up with the present application.

10. Mr. A.R. Gupta, the learned advocate appearing for the applicant vehemently submitted that the Revisional Court committed an error in quashing the order passed by the learned Magistrate below Exh.3 permitting the applicant herein to be substituted as a complainant in place of the proprietary concern.

Page 3 of 26 R/SCR.A/5562/2014 CAV JUDGMENT

11. Mr. Gupta submitted that the Revisional Court proceeded absolutely on a wrong footing that the order passed by the trial Court below Exh.3 was in the form of an amendment in the complaint. Mr. Gupta submitted that the substitution of a complainant in the complaint would not amount to amending the complaint. Mr. Gupta submitted that the two decisions relied upon by the Revisional Court, namely (1) Lekhraj Singh Kushwah v.

Brahmanand Tiwari reported in 2014 Cr. L. J. 290, and (2) Suboodh s. Salaskar v. Jayprakash M. Shah and another reported in AIR 2008 Supreme court 3086(1), have no application worth the name in the present case.

12. In such circumstances referred to above, Mr. Gupta prays that there being merit in this application, the same be allowed and the impugned order be quashed.

13. On the other hand, this application has been vehemently opposed by Ms. Hetvi H. Sancheti, the learned advocate appearing for the respondent No.1 - accused. She submitted that no error, not to speak of any error of law could be said to have been committed by the Revisional Court in passing the impugned order. She submitted that although the complaint was lodged in the name of a proprietary concern, yet if the proprietary concern has ceased to exist as the same has been now taken over by a private limited company, it cannot be substituted in the complaint as a complainant in place of the proprietary concern since the applicant herein is neither a "payee" nor a "holder in due course".

Page 4 of 26 R/SCR.A/5562/2014 CAV JUDGMENT

14. Ms. Sancheti submitted that it is only the "payee" or the "holder in due course", who can lodge the complaint and proceed further with the same.

15. Ms. Sancheti placed strong reliance on the decision of the Supreme Court in the case of Shankar Finance and Investments v. State of Andhra Pradesh and others reported in (2008) 3 SCC (Cri) 558 in support of her submission.

16. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the court below committed any error in passing the impugned order.

17. It is not in dispute that the complaint under Section 138 of the Act was lodged by a proprietary concern through its proprietor. It is not in dispute that upon such complaint being filed, the Court below took cognizance upon the same and ordered the issue of process against the accused for the offence punishable under Section 138 of the Act.

18. During the pendency of the trial before the trial Court, the running business of the sole proprietorship "Aspam Petronergy Private Limited" was taken over by the "Aspam Petronergy Private Limited".

19. I may quote the Memorandum of Association of the private limited company as under:

Page 5 of 26 R/SCR.A/5562/2014 CAV JUDGMENT

"(THE COMPANIES ACT, 1956) (COMPANY LIMITED BY SHARES) MEMORANDUM OF ASSOCIATION OF ASPAM PETRONERGY PRIVATE LIMITED I. The name of the company is ASPAM PETRONERGY PRIVATE LIMITED.

II. The registered office of the company will be situated in the Union Territory of Delhi.

III. The objects for which the company is established are: (A) THE MAIN OBJECTS TO BE PURSUED BY THE COMPANY ON ITS INCORPORATION ARE:

1. To takeover the existing business of Sole Proprietorship Firm "Aspam Petronergy" (the Firm) situated at Shop No.4, BBlock, Antirksh Appartment, Sector14, Rohini, New Delhi110085 as a going concern alongwith all its assets, liabilities, contracts, arrangements, agreements, etc and on such terms and conditions as may be mutually agreed upon.

The said Firm will cease to exist after such takeover, by the company after its incorporation.

2. To carry out on the business of manufacture, processors, traders, sellers, wholesalers, suppliers, intenters, stockists or otherwise deal, only on wholesale basis, in industrial oil and chemicals and other chemicals and any produces and by products derivatives thereof and to carry out on the business as manufacturers, processors, exporters, importers, traders, buyers, sellers, wholesaler, stockists or otherwise deal, only on wholesale basis, in petroleum and other oils and hydrocarbons of every description.

3. To store and prepare for market, transport by land, sea or air and convey in any manner whatsoever petrol, motor, spirit, mineral oil, petroleum, oleginous substance, oil, shalos, coal, coke, lignites, bitumen, naphas, mineral waxes, gas and mineral substances or all kinds and to carry out the business as manufactures, processors, exporters, importers, traders, buyers, sellers, wholesales, stockists or otherwise deal in any manner whatsoever only on wholesale basis, petrol, motor spirit, mineral, oil petroleum, oleaginous substances, oil shalos, coal, coke, lignite, bitumen, naphtha, mineral waxes, gas, mineral substances of all kinds."

20. A very short, but an important point which falls for my Page 6 of 26 R/SCR.A/5562/2014 CAV JUDGMENT consideration is whether permitting a private limited company to be substituted as the complainant in place of the proprietary concern amounts to an amendment in the complaint.

21. It is true that there is no provision in the Criminal Procedure Code, which empowers a Court to permit an amendment of the complaint at a later stage. However, the substitution of the complainant at a later stage in certain contingencies would not amount to seeking an amendment in the complaint.

22. The Black's Law Dictionary, 5th Edition, explains "amendment" as under:

"Amendment To change or modify for the better. To alter by modification, deletion, or addition.

Practice and pleading. The correction of an error committed in any process, pleading, or proceeding at law, or in equity, and which is done either as of course, or by the consent of parties, or upon motion to the court in which the proceeding is pending. Under Fed.R.Civil P., any change in pleadings, though not necessarily a correction, which a party may accomplish once as a matter of course at any time before a responsive pleading has been served. Such amendment may be necessary to cause pleadings to conform to evidence. Rule 15(a), (b). The amendment relates back to the original pleading if the subject of it arose out of the transaction set forth or attempted to be set forth in the original pleading. Fed.R.Civil P. 15(c) Compare Supplemental pleadings."

23. The word "Amend" has also been explained in the Black's Law Dictionary, 5th Edition as under:

"Amend To improve. To change for the better by removing defects of faults. To change, correct, revise."

Page 7 of 26 R/SCR.A/5562/2014 CAV JUDGMENT

24. The Oxford Advanced Learner's Dictionary, 6th Edition, explains "Amendment" as under:

"Amendment 1 a small change or improvement that is made to a law or a document; the process or changing a law or a document:

to introduce/propose/table an amendment (= to suggest it). She made several minor amendments to her essay. Parliament passed the bill without further amendment. 2 (Amendment) a statement of a change to the CONSTITUTION of the US: The 19th Amendment gave women the right to vote."

25. The word "Amend" has been explained by the Oxford Advanced Learner's Dictionary, 6th Edition as under:

"Amend to change a law, document, statement, etc, slightly in order to correct a mistake or to improve it. He asked to see the amended version."

26. The West's Legal Dictionary explains the term "Amend" and "Amendment" as under:

"Amend v. 1. To improve (amend the condition). Correct, remedy, repair, reform, purify, rectify, better, cleanse, mend, make better, perfect, ameliorate, refine, upgrade, meliorate, emend, polish, redeem, redress. 2. To change (amend the proposal). Revise, alter, change, enlarge, add, develop, transform, refashion, revamp, rewrite, rework, modify, adjust, edit, qualify, commute, convert."

"Amendment n. 1. Improvement, Correction, remedy, repairing, reformation, rectification, betterment, perfection, clarification, amelioration, refinement, redemption, redressing, purification. 2. A change. Revision, alteration, enlargement, addition, development, transformation, revamping, reworking, conversion, metamorphosis, exchange. 3. Legislation, Statute, act, measure, bill, rider, resolution, clause. 4. Attachment. Supplement, appendix, appendage, addendum,"

27. Section 138 of the Act reads as under:

"Dishonour of cheque for insufficiency, etc, of funds in the Page 8 of 26 R/SCR.A/5562/2014 CAV JUDGMENT account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.]"

28. Section 142 of the Act reads as under:

"Cognizance of offences Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)

(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of death arises under clause (c) of the proviso to Page 9 of 26 R/SCR.A/5562/2014 CAV JUDGMENT section 138:

[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.]

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.]

29. Section 142(a) of the Act provides that no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint made in writing by the payee. Thus, two requirements are that (a) the complaint should be made in writing (in contradistinction from an oral complaint); and (b) the complainant should be the "payee" or the "holder in due course"

where the payee has endorsed the cheque in favour of someone else.

30. The payee, in the present case, was the proprietary concern. As a "payee", the proprietary concern was competent to file the complaint and it did file the complaint. Once the complaint is in the name of the "payee" and is in writing, the requirements of Section 142 are fulfilled. Who should represent the payee where the payee is a company, or how the payee should be represented where the "payee" is a sole proprietary concern, is not a matter that is governed by Section 142, but by the general law. (See Shankar Finance (supra).)

31. In my view, when the complaint was lodged in the year 2010 by the proprietary concern, the same was maintainable as the Page 10 of 26 R/SCR.A/5562/2014 CAV JUDGMENT proprietary concern was the "payee" of the cheque. At a later stage for the purpose of business convenience, if the entire business of the proprietary concern with all its rights and liabilities were taken over by a private limited company, then such private limited company can seek substitution as a complainant in the complaint so that the private limited company can pursue the complaint further in accordance with law.

32. The entire reasoning assigned by the Revisional Court are absolutely fallacious. The Revisional Court has thoroughly confused itself with the amendment in the complaint and substitution of the complainant.

33. The case on hand is not one in which the amendment was prayed for in the pleadings of the complaint. Had it been so, then probably the Revisional Court would have been justified in saying that there cannot be any amendment in the pleadings of the complaint after the complaint is filed and cognizance is taken by the Court.

34. I may quote with profit a decision of the Kerala High Court in the case of Kasargod Self Employees Financing Co v. State of Kerala and another reported in 2009 Criminal Law Journal 305 wherein an identical issue was considered by a learned Single Judge of the High Court. I may quote the observations made by the Court as contained in paras Nos.6, 7, 8, 9 and 10 as under:

"6. It seems to be clear from the evidence of PW 1 that the complainant firm ceased to be in existence in the year 2000. Going by the finding given by the Court below in C.C. No. 449/1998 leading to Page 11 of 26 R/SCR.A/5562/2014 CAV JUDGMENT Crl.A.2123/2008, the complainant firm ceased to be in existence on 1 42000. A firm essentially ceases to be in existence when it stands dissolved. Such dissolution takes place either by a voluntary act of the partners constituting the same or by operation of law when one of the partners in the firm dies or retires or is declared insolvent and there is no provision in the partnership deed providing for the continuance of the firm in spite of the retirement or death of a partner. Dissolution of a firm also takes place when there is an order by the Court. Though the document evidencing the merger of the firm in the company, bearing the same name has not been placed on record before the Court, going by the version given by PW1, it can only be treated as a case where the partners of the firm, resolved to float a company of the same name, the said company came into existence, and the assets and liabilities of the firm were taken over by the newly floated company. In other words, there was a transfer of the assets and liabilities of the firm in favour of the company, as an ongoing concern. This is what is discernible from the testimony of PW1. As rightly pointed out by Mr. Jaju Babu the concept of merger would essentially apply only between two corporate entities and in such a case, a merger would be regulated by the provisions of Sections 391 to 394 of the Companies Act. I proceed on the premise, going by the finding of the Court below and the testimony of PW1, that the partners who constituted the complainant firm resolved that the entire assets and liabilities of the firm shall be transferred to and be treated as the assets of the public limited company of the same name. In fact, there came into being a dissolution of the firm by act of parties and consequently the complainant firm ceased to be an ongoing concern with effect from 1 42000, going by the finding of the Court below in C.C. No. 449/2008 leading to Crl.A.2123/2008, I will have to proceed on this basis, since the factual premise has not been challenged by any of the parties.

7. The complaint was instituted by the firm and, except in the case of Crl.A.661/ 2005 arising from C.C. No. 288/2001, the complainant firm was in, existence when the cheque was issued, presented for collection, when the statutory demand notice was issued and more importantly when the complaint was instituted. The complainant was represented by a General Power of Attorney holder and the firm had executed the Power of Attorney in favour of the Power holder authorizing him to conduct the proceedings on behalf of the complainant firm. In all the aforementioned cases, there was no defect in the institution of the complaint as such. But during the pendency of the proceedings the complainant firm ceased to be in existence and as I mentioned above, the firm can cease to either by operation of law or by the voluntary act of the partners. It will tantamount to a case Page 12 of 26 R/SCR.A/5562/2014 CAV JUDGMENT where the complainant is not in a position to thereafter appear before the Court and therefore, will have to be treated as a case where the complainant is absent from the Court. But obviously in most of such cases, a dissolution of the firm, whether it is by act of partners or otherwise, would be evidenced by a document and the erstwhile partners or the continuing partners as the case may be, will have to provide for the continuance of such cases as are existing as on the date of dissolution and the right to continue the proceedings will have to be vested in one of the erstwhile partners of the firm. Each partner is an agent of the firm and is an agent of each other and therefore, the partner, who is authorized to continue the proceedings on behalf of the firm, will be in a position to continue the prosecution of the complaint. But in a case where a dissolution of the firm takes place during the pendency of the proceedings before the trial Court, erstwhile partner, who is given the right to continue the proceedings, will have to approach the Court with an application under Section 302 of Cr. P.C for a permission to continue the prosecution. Where the Deed of dissolution between the parties does not specifically provide that anyone of the partners may continue with the pending proceedings which the firm had actually instituted (or which the firm was defending as the case may be), then each one of the erstwhile partners would have a right to approach the Court or the right to continue the proceedings notwithstanding the dissolution, on the premise that the continuance of the proceedings are necessary to wind up the affairs of the firm and to complete the transactions taken but unfinished at the time of dissolution (Section 47 of the Partnership Act). But once there is a dissolution of the firm, which figures as a complainant, during the pendency of the complaint, there has to be a motion at the instance of a competent person, competent to represent the interest of the erstwhile firm, seeking the permission of the Court to continue the prosecution in terms of Section 302 of Cr. P.C. Failure to do so would result in a situation where the Court would be perforce compelled to proceed under Section 256 of the Cr. P.C.

8. Insofar as the present case is concerned, PW1 was the Power of Attorney holder of the erstwhile firm and therefore he was competent to represent the interest of the firm while it was in existence and at any rate, competent to speak on behalf of the partners of the firm till the firm ceased to be in existence in the year 2000. Of course assets and liabilities of the firm, as an ongoing concern, came to be vested in the limited company. In such circumstances, the public limited company, which was floated by the erstwhile partners of the firm as promoters would have been competent to make an application before the Court below under Section 302 of Cr. P.C to continue the Page 13 of 26 R/SCR.A/5562/2014 CAV JUDGMENT prosecution as such. Even a Director of the Company, without a separate Power of Attorney in his favour, would have been competent to represent the company. But an application to continue the prosecution should have come from the transferee in interest, broadly answering the description of a legal representative. This is the view that has been taken by the Supreme Court in the aforementioned decision (JT 2004 (9) SC 558) 2005 Cri LJ 112 Admittedly, no such application was filed on behalf of the public limited company having the same name of the complainant firm at any point of time before the acquittal of the accused and consequently the Court below was right in holding that the complainant firm would be treated as bereft of a representation, after the dissolution of the firm as such. To that extent the finding of the Court below is justified and I uphold the same.

9. But if this be the position that results from the dissolution of the firm, which figured as a complainant, then, in my view, further finding of the Court below, on an appreciation of the defence taken by the accused, that the cheque was not issued in discharge of a liability and the course of action adopted by the Court below in acquitting the accused under Section 255(1) is not correct. In my view, if it is a case where the complainant ceases to be in existence or the case where the complainant is not properly represented at any point of time, then it tantamounts to a case of absence of the complainant under Section 256(1). Since the firm is the complainant and therefore, the death of the complainant is not possible, on dissolution of the firm a cessation of the firm comes into being and unless there is an application by a competent person entitled to continue to represent the interest of the complainant made before the Court and the Court accepts the same, it is a case where the Court will have to proceed on the premise that the complainant is absent, under Section 256(1). If that be the case, the learned Chief Judicial Magistrate should have obviously proceeded under Section 256(1) and not under Section 255(1) of the Cr. P.C.

10. Further, consistent with the finding which I have just made above that the complainant firm stood admittedly dissolved with effect from 2000, it also has to be held that if therefore, the accused was to be acquitted under Section 256(1) on the premise that the complainant is absent and the finding itself was in consequence of the fact that the complainant ceased to be in existence in 2000 and there was no application by a competent person to continue the prosecution in terms of Section 302 of Cr. P.C the appeal itself may have to be held as incompetent. The appeal is presented by the firm and since the appeal under Section 378 Cr. P.C could be presented only by the complainant (in the case of a private complaint), the dissolution of Page 14 of 26 R/SCR.A/5562/2014 CAV JUDGMENT the complainant firm and absence of a competent person to continue the prosecution, in such circumstances, will stand in the way of the complainant firm continuing the prosecution after obtaining leave from this Court under Section 378 Cr. P.C. This in my view would be an additional factor which stands in the way of the appellant seeking reversal of the order of acquittal."

35. The decision relied upon by Ms. Sancheti, the learned advocate appearing for the accused of the Supreme Court in the case of Shankar Finance (supra) does not help the accused in any manner, but on the contrary the principle explained in the said judgment is helpful to the applicant herein.

36. I may also quote with profit a decision rendered by a learned Single Judge of this Court in the case of Anil G. Shah v. Chittaranja Co and another reported in 1998 (1) GLR 303.

"7. No doubt, section 142(a) of the Act makes it quite clear that the Court shall not take cognizance of any offence punishable under section 138 except upon a complaint in writing made by the payee or the holder in due course of the cheque as the case may be. If this provision of section 142(a) is considered, then it would be quite clear that this provision is laying down a provision as to how the cognizance of an offence is to be taken. The said provision makes it quite clear that the offence punishable under section 138 is not a cognizable offence as contemplated by the Code of Criminal Procedure. In the case of a cognizable offence contemplated by Code of Criminal Procedure, it is a settled law that anybody can set law in motion by lodging a complaint. But in view of the provisions of section 142 of the Act, cognizance of the offence could be taken only in case if the complaint is lodged either by payee or the holder in due course of the negotiable instrument. As it is an admitted fact that the complaint in question was lodged by the power of attorney holder of the original payee, it would be necessary to revert to the provisions of section 2 of the Powers of Attorney Act, 1882. The said section 2 runs as under:

Page 15 of 26 R/SCR.A/5562/2014 CAV JUDGMENT

"2. Execution under power of attorney : The donee of a powerofattorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof."

If the above provision of subsection (2) is considered, then it would be quite clear that in view of the provisions of the said section, an act committed by the holder of the power of attorney would be presumed to be an act committed by the person who gives power of attorney. Therefore, in view of this specific provision of section 2 of the Powers of Attorney Act, 1882, it would have to be presumed as per law that the complaint lodged by the power of attorney holder is a complaint lodged by the payee. Learned advocate for the respondent Mr. Hasurkar vehemently urged before me that section 142 (a) of the Act does not incorporate that the court should take the cognizance of complaint lodged by the payee's power of attorney holder and therefore, the Court cannot hold that the power of attorney holder's act is an act of the payee. He further contended before me that if this Court holds that the power of attorney can lodge a complaint then this court would be legislating what is not legislated by the Legislature, while framing section 142 of the Act. But what is being considered by me in this case is as to whether taking of the cognizance of a complaint lodged by a power of attorney holder of a payee could be said to be legal in a complaint filed by the payee. I can refuse to take cognizance of the offence punishable under section 138 only in case if it is found by me that the complaint lodged is not lodged by the payee. If the payee is empowered by the provisions of the Powers of Attorney Act, 1882 to empower other persons to act on his behalf and thereby to bind himself,then it could not be said that his acting under the said provisions is illegal and invalid.

8. The view which I have taken is supported by the decision of the Kerala High Court, Madras High Court, Calcutta High Court and Punjab and Haryana High Court. In the case of Hasma vs. Ibrahim, reported in 1994(1) Bank Commercial Law Reporter,159, His Lordship K T Thomas, (as he then was) has observed in Page 16 of 26 R/SCR.A/5562/2014 CAV JUDGMENT paras 7 and 8 as under for holding that the power of attorney holder of a payee can lodge a complaint under section 142 of the Act.

"7. In considering the question involved here legal position regarding the right of a person to appoint another as his agent to be understood at least in a general manner. According to the law of England "every person who is suit jurist has a right to appoint an agent for any purpose whatever and tht he can do so when he is exercising a statutory right no less than when he is exercising any other right" (vide Jackson and Co. vs. Napper (1986) 35 Ch.D, 162 at page 172(. This was recognised as a common law right. Blackburn, J has stated in Queen vs. Justices of Kent (1873) 8 Q.B. 305 that " at common law, when a person authorises another to sign for him, the signature of the person so signing is the signature of the person authorizing it". The Supreme Court has declared in a decision that the law in India is also the same (vide Revulu Subbarao vs. I.T. Commr. 1956 SC,604) Venkatarama Ayyar, J in the said decision has observed that the said rule is subject to certain well known exceptions such as, when the act to be performed is personal in character, or when the act to be performed is annexed to a public office, or to an office involving any fiduciary obligation. "But apart from such exception, the law is well settled that whatever a person can do himself, he can do through an agent" observed the learned Judge in the said decision. The above can thus be regarded as the legal position regarding the right to appoint an agent.

8. "Power of attorney" is the instrument by which a person is authorised to act as the agent of the person grating in (vide Black's Law Dictionary). In Stroud's Judicial Dictionary, power of attorney is described as "an authority whereby one is set in the turns, stead, or place of another to act for him."

Stone, C.J. Has adopted the said definition as effective and acceptable in Ramdeo vs. Lalu Natha AIR 1937 Nagpur,65). Section 2 of the Power of Attorney Act, 1882 empowers the donee of the power of attorney to do anything "in and with his own name and signature" by the authority of the donor of the power. The section declares that everything so done "shall be as effectual in law as if it had been......done by the donee of the power in the name and with the signature.....of Page 17 of 26 R/SCR.A/5562/2014 CAV JUDGMENT the donor thereof" (short of the words which are not necessary in this context). In the light of such declaration, the legal position is that the power of attorney holder can do everything empowered by the donor and all such acts done by the donee shall have legal recognition and acceptance as though such acts were done by the donor himself."

9. Punjab and Haryana High Court in the case of Punna Devi and another vs. JOhn Impex (Pvt.) Ltd. and others reported in 1996(2) Banking Commercial Law Reporter, 482 has upheld the filing of the complaint by power of attorney holder on behalf of a payee by making the following observations:

"The eligibility criteria under the Negotiable Instruments Act is that the complaint should be made by the payee or as the case may be, the holder in due course of the cheque. This eligibility criteria does not get disturbed, if a Power of Attorney Agent duly constituted initiates private complaints, for as I have stated earlier, the Power of Attorney Agent, steps into the shoes of the payee or the holder in due course of the cheque. It is not as though, total strangers not contemplated under Section 142(a) of the Act, had initiated complaints which can be done under the general law, for there is no specific locus standi, for setting the criminal law in motion, unless as I have stated earlier, eligibility criteria intervenes. Once a Power of Attorney Agent makes the complaint, for all practical purposes, it is the payee or the holder in due course of the cheque, who is the complainant, the words "in writing" mentioned in Section 142(a) of the Negotiable Instruments Act to my mind, cannot be restricted to mean, that it must be in writing by the payee himself or the holder in due course himself, for, if it is made by the Power of Attorney Agent it tantamounts to the complaint being made by the payee or as the case may be the holder in due course of the cheque. As rightly pointed out by one of the counsel, the words "in writing" appear to have been introduced under Section 142(a) of the Act, contra distinguished from Section 2(d) of the Criminal Procedure Code, which postulates an oral complaint as well."

10. The same view is also taken by the Calcutta High Court in the case of Sk. Aabdur Rahim vs. Amal Kumar Banerjee and State of West Bengal, reported in 1994(2) Current Criminal Reports, Page 18 of 26 R/SCR.A/5562/2014 CAV JUDGMENT 1040.

11. It must be remembered that Section 142 does not lay down that the complaint must be filed by the payee personally. If the interpretation which learned advocate for the respondent wants me to accept, then it would mean that the complaint must be filed by the payee personally. When section 142 itself does not specifically say that the complaint must be lodged by the complainant personally and when it is also not the case of the public officer lodging the complaint, the lodging of the complaint by the power of attorney holder of the payee could not be said to be illegal or invalid. The learned Sessions Judge has not properly considered the decision of this Court reported in 1995(1) GLR,424 in its proper context. It seems that he has been misled by mere headnote and he has not gone through the said decision. The following observations in the said judgment would clearly show that the said judgment is not applicable to the facts of the case before me.

12. The learned advocate for the respondent has drawn my attention to the following commentary in Broom's Legal Maxims, 10th Edition, page 306.

"It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but do to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended qua frequentius accident". "But" on the other hand "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom" (a) A casus omissus ought not to be created by interpretation, save in some case of strong necessity (b) Where, however, a casus omissus does really occur, either through the inadvertence of the legislature (c) or on the principle quod semel aut bis existit proetereunt legislatores (d), the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statuteCasus omissus et oblivioni datus dispositioni communis juris relinquitur (e) "a casus omissus"

observed Buller, J (f) "can in no case be supplied by a court of law, for that would be to make laws"

13. In my opinion, the above observations are not at all helpful Page 19 of 26 R/SCR.A/5562/2014 CAV JUDGMENT to the respondent in the case in question and they do not support his contention. On the contrary, they support the view taken by me. The view taken by me also gets support from the observations of the Apex Court in the case of Vishwa Mitter vs. O.P. Poddar and others reported in AIR 1984 SC, page 5. Para6 which runs as under:

"6. Even otherwise in the absence of a specific qualification, if the person complaining has a subsisting interest in the protection of the registered trade mark, his complaint cannot be rejected on the ground that he had no cause of action nor sufficient subsisting interest to file the complaint. M/s Mangalore Ganesh Beedies Works, a partnership firm is the registered owner of trade marks, falsification and infringement of which is complained by the present complainant who is not only a dealer in these beedies manufactured and sold by the registered owner of the trade marks, but he is also the constituted attorney of the owners of the registered trade mark. To say that the owner of the registered trade mark can alone file the complaint is contrary to the provisions of the statute and commonsense and reason. Therefor, the order of the learned Magistrate dismissing the complaint at the threshold on the ground that the present appellant has no cause of action to file the complaint is utterly unsustainable and must be quashed and set aside. Surprisingly, the High Court dismissed the revision petition of the complainant in limine which order is equally unsustainable and must be set aside."

14. Therefore, in view of the above discussion, I hold that the learned Sessions Judge was not at all justified in interfering with the order passed by the learned Metropolitan Magistrate by allowing the Revision Application filed by the respondent and in view of the above discussion, it would be quite clear that his conclusion that cognizance of the complaint ought to have been taken in view of the provisions of section 142 of the Negotiable Instruments Act is erroneous and the same deserves to be interfered with by exercising revisional jurisdiction.

15. The next contention which is raised on behalf of the respondent is also of technical nature. It is urged on behalf of the respondent that after lodging of the complaint, the original complainant G.R.Shah has died. G.R.Shah has died on 20.8.94. The complaint in this case was lodged on 7.7.94. The learned Page 20 of 26 R/SCR.A/5562/2014 CAV JUDGMENT Metropolitan Magistrate has issued process against the respondent on the same day, i.e. on 7th July, 1994. Once the learned Metropolitan Magistrate issues process, it is quite obvious that he has taken cognizance of the offence. Once the Magistrate happens to take cognizance of the offence, the death of the payee of the cheque has no bearing on the trial in question. Had there been the death of the payee of the cheque before the Magistrate had taken cognizance of the offence, then there would have been a question as to whether cognizance of the offence could be taken, but that question does not arise now in view of the fact that the Magistrate has already taken cognizance of the matter. Once cognizance of the offence has been taken by the Magistrate, the trial will have its end after following due process and procedure as laid down in the Code of Criminal Procedure. There is no provision in the Code of Criminal Procedure or in the Negotiable Instrument Act laying down that on account of death of the payee, the trial must abate. When there is no such provision either in the Code of Criminal Procedure or in the Negotiable Instrument Act, then merely because the original complainantpayee has died, there could not be abatement of the proceedings. The legal heirs of the original complainant are entitled to come forward and ask for their substitution in place of the complainant so as to proceed further with the trial. In the case of T.N.Jayarasan vs. Jayarasan, reported in 1992(3) Crimes, 666, this question of death of payee complainant and the consequences of the same has been considered and it has been held that the Magistrate can grant permission to the son of the deceased complainant to proceed with the complainant. The same view is also taken by the High Court of Jammu and Kashmir in the case of Ashok KUmar vs. Abdul Latif and others reported in 1989 Criminal Law Journal, 1856 and by the Andhra Pradesh High Court in the case of Maddipatta Govindaiah Naidu and others vs. Yelakaluri Kamaalamma and others reported in 1984 Criminal Law Journal, 1326. In my opinion, the view by all these three High Courts is proper and must be followed. As stated earlier, once cognizance of the case has been taken by the Magistrate, the case must have its end according to law and when there is no provision in the Code of Criminal Procedure to the effect that on account of the death of the complainant, abatement of the case must take place, it is not open for the Magistrate to dismiss the complaint by holding that it has abated on account of the death of the complainant. Therefore, in my opinion, the death of the original complainant has no bearing on the trial in question. The learned advocate for the respondent has vehemently urged before me that till today, no Page 21 of 26 R/SCR.A/5562/2014 CAV JUDGMENT application is filed by the heirs and legal representatives of the original complainant, to bring them on record. But when the learned Sessions Judge has already passed an order of dismissing the complaint under section 258 and when the matter was pending in the higher forum, it was not possible for the heirs of the original complainant to move the Metropolitan Magistrate. They would be at liberty to take appropriate steps in view of the decision taken by this Court today."

37. The two decisions relied upon by the Revisional Court have been thoroughly misinterpreted. In the case of Lekhraj Singh (supra), the facts were altogether different. In the said case, after completion of the crossexamination, the respondent filed an application for amendment in the complaint before the trial Court submitting that the cheque No.332534 had been wrongly mentioned in place of 332554 due to the negligence of the respondent's counsel and not because of the respondent. The trial Court allowed the application and ordered for carrying out the necessary amendment in the application. The order was challenged before the Sessions Court and the Sessions Court also affirmed the order passed by the trial Court. The High Court did not approve the orders passed by the Court below and took the view that there was a clear inconsistency in the number of cheque given by the respondent. The Court proceeded to observe that there was no provision in the Cr. P.C. to make any amendment in the statement already given. The learned Single Judge of the Madhya Pradesh High Court made the following observation in paras Nos.5, 6, 7, 8 and 9 :

"5. The crucial question arises for consideration before this Court is where the amendment in the complaint filed under Page 22 of 26 R/SCR.A/5562/2014 CAV JUDGMENT Section 138 of the Act is permissible under the law. It is not disputed that there is no express provision in the Code of Criminal Procedure to allow the amendment. The order passed by the learned ASJ reveals that while dismissing the revision of the petitioner, it is observed by the learned ASJ that during cross examination of the respondent/complainant suggestion given by the petitioner does not deny the existence of the questioned cheque, case is at defence stage, petitioner/accused has an opportunity to defend his case. Reliance has also been placed on the decision rendered in Pt. Gorelal and Anr. v. Rahul Punjabi, 2010 (II) MPKR 228 (2011 ACD 313 (MP)).

6. The learned counsel for the petitioner submits that this Court in the case of Kunstocom Electronics (I) Ltd. v. State of MP and another, 2002 (5) MPLJ 178 considering the point as to whether amendment can be made in the complaint, by placing reliance on Ashok Chaturvedi v. Shitul H. Chanchani, AIR 1998 SC 2796, State of Kerala and others v. O.C.K. Kuttan, 1999 SCC (Cri) 304 : (AIR 1999 SC 1044) and M. Krishnan v. Vijay Singh and another, 2001 (4) Crimes 65 (SC) : (AIR 2001 SC 3014), held that there is no provision in the Code of Criminal Procedure giving right to the parties to file an application for amendment in the pleadings and give powers to lower Courts to allow the same. Again this Court in Criminal Revision No. 1041/2007 (Sunder Dev v. Yogesh) decided on 1832008 has held that such amendment cannot be allowed by observing that "allowing the application at this stage of the proceeding when the mater of Section 138 of the Negotiable Instruments Act is considered, the liability as well as the compliance demand strict mandatory compliance then under the said circumstances if the benefit has accrued to the petitioner, the respondent cannot be allowed to get away with the negligence at this stage of the proceedings".

7. Learned counsel for the petitioner has pointed out that in the matter of Pt. Gorelal (2011 ACD 313 (MP)) (supra), this Court has taken note of Kunstocom Electronics (I) Ltd's case, but still allowed the amendment referring the decision rendered in the matter of Pradeep Premchandani v. Smt. Neeta Jain (M.Cr.C.No.2907/2007) decided on 18.9.2008, wherein this Court has held that so far as wrong mention of the cheque number either in the notice or in the complaint are concerned, the Court would always have the jurisdiction to look into the fact and do complete justice in the matter. Further a decision of Rajasthan High Court rendered in the matter of Bhim Singh v. Kansingh, 2004 (2) DCR Page 23 of 26 R/SCR.A/5562/2014 CAV JUDGMENT 158 : (2004 Cri LJ 4306 (Raj)), wherein the application for amendment of cheque number and date of information by bank on ground of typographical mistake was allowed by the trial Court, it was held that trial Court has inherent power to rectify such typographical mistakes to do justice, and a decision of Calcutta High Court in the matter of Babli Majumudar v. State of West Bengal, 2009(1) DCR 363, wherein it has been held that wrong number on dishonour cheque is of no relevance for the drawer to pay the amount covered by such cheque, have also been referred in Pt. Gorelal's case.

8. It is evidence that this Court has taken a consistent view in Kunstocom Electronics (I) Ltd and Sunder Dev (supra), that there is no provision for amendment in the Code of Criminal Procedure and the amendment in the complaint cannot be permitted, but in the case of Pt. Gorelal (2011 ACD 313(MP)) (supra) taking note of the aforesaid cases, it has been held that application for correction of cheque number can be allowed.

9. The Hon'ble Supreme Court in the matter of Sant Lal Gupta and others v. Modern Cooperative Group Housing Society Limited and others, (2010) 13 SCC 336 : (AIR 2011 SC 882) observed in paras 17 and 18 (paras 18 and 19 of AIR) as under: "17. A coordinate Bench cannot comment upon the discretion exercised or judgment rendered by another co ordinate Bench of the same Court. The rule of precedent is binding for the reason that there is a desire to secure uniformity and certainty in law. Thus, in judicial administration precedents which enunciate the rules of law from the foundation of the administration of justice under our system. Therefore, it has always been insisted that the decision of a coordinate Bench must be followed.

18. In Rajasthan Public Service Commission v. Harish Kumar Purohit (2003) 5 SCC 480 : (AIR 2003 SC 3476), this Court held that a Bench must follow the decision of a coordinate Bench and take the same view as has been taken earlier. The earlier decision of the coordinate Bench is binding upon any latter coordinate Bench deciding the same or similar issues. If the latter bench wants to take a different view than that taken by the earlier Bench, the proper course is for it to refer the matter to a larger Bench.""

Page 24 of 26 R/SCR.A/5562/2014 CAV JUDGMENT

38. Thus from the above, it is evident that the amendment was prayed for to effect the necessary correction in the pleadings itself which is not permissible in law.

39. I may give one simple example. What would happen on the death of the complainant. Is it not permissible to substitute the legal heirs of the complainant on the demise of the original complainant. Will it amount to amendment in the complaint. The answer has to be in the negative. The endeavour must be to do justice and not to take advantage of technicalities. The urge to resort to easy way out must give way to judicial justness.

40. The decision of the Supreme Court in the case of Subodh (supra) has also no application worth the name. In the said case, during the pendency of the trial, the complainant prayed that he may be permitted to add Section 420 of the Indian Penal Code along with the Section 138 of the Negotiable Instruments Act. In such circumstances, the Supreme Court observed in para No.30 that the Court had no jurisdiction to allow the amendment of the complaint at a later stage.

41. In my view, the trial Court passed a correct order allowing the application Exh.3 and permitting the applicant herein to be substituted as a complainant in place of the original proprietary concern.

42. For the foregoing reasons, the impugned order passed by the Revisional Court dated 16.10.2014 in the Criminal Revision Page 25 of 26 R/SCR.A/5562/2014 CAV JUDGMENT Application No.191 of 2014 is hereby quashed and set aside. The order dated 03.04.2014 passed by the learned Metropolitan Magistrate below Exh.3 in the Criminal Case No.2592 of 2010 is confirmed.

43. The trial shall now proceed further expeditiously in accordance with law.

(J.B.PARDIWALA, J.) chandresh Page 26 of 26

Unlock Advanced Research with PRISMAI

Gujarat High Court