Karnataka High Court
Nagarajappa vs H D Kumar Swamy S/O H D Devegowda on 11 October, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL PETITION No.1174 OF 2012
BETWEEN:
Nagarajappa,
Aged about 65 years,
Chairman,
Mysuru Sugar Co., Ltd.,
Mandya,
R/o. No.174, Someswaranilaya,
1st Cross, Vidyanagara,
Mandya City. ...Petitioner
(By Sri. B.S. Manjunath, Advocate)
AND:
1. H.D. Kumar Swamy
Aged about 52 years,
S/o. H.D. Deve Gowda,
No. G2, Ranka Apartments,
C.V. Raman Road, Mekhri Circle,
Sadashiva Nagara,
Bengaluru-560 080.
2. K.T. Dhanu Kumar
Aged about 30 years,
S/o. D. Thammaiah,
K.T.D. Legal Associates,
No.2072, 1st Cross,
Crl.P.No.1174/2012
2
Suhubash Nagara,
Mandya. ...Respondents
(By Sri. R.V. Ramesh kumar, Advocate)
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to quash the order dated:30.12.2011 passed
in PCR No.277/2011 on the file of the Addl. C.J. (Jr. Dn.) and
JMFC, Mandya is produced as Annexure-A.
This Criminal Petition having been heard and reserved
for orders on 01.10.2018, this day the Court made the
following:
ORDER
The petitioner who is accused No.2 in PCR No.277/2011 pending in the Court of the Additional Civil Judge and JMFC at Mandya (henceforth for brevity referred to as "the Trial Court") has challenged the order dated 30.12.2011 passed by the trial Court in the said PCR, wherein, it has ordered for registration of case and issuance of summons to accused Nos.1 to 14 Crl.P.No.1174/2012 3 before it, for the offences punishable under Sections 500, 501, 502 of IPC.
2. PCR No.277/2011 was filed by Sri.H.D.Kumaraswamy, the then member of the Parliament and Former Chief Minister and also present Chief Minister of the State of Karnataka, represented by his General Power of Attorney Holder Sri.K.T.Dhanukumar, against the accused who are 14 in number, under Section 200 of the Code of Criminal Procedure, 1973 (henceforth for brevity referred to as "the Cr.P.C"). It was alleged that on 15.11.2007, the accused printed, published, distributed, advertised and circulated derogatory / defamatory pamphlets in public places. The trial Court after taking cognizance of the matter, on 28.07.2011 had proceeded to record the sworn statement of the Power of Attorney Holder Sri.K.T.Dhanukumar on 03.10.2011 and proceeded to Crl.P.No.1174/2012 4 pass the impugned order, ordering for issuance of summons on 30.12.2011.
3. It is the argument of the learned counsel for the petitioner that the complaint is filed by the General Power of Attorney Holder, as such, the private complaint filed under Section 200 Cr.P.C is not maintainable. According to the learned counsel, since the General Power of Attorney holder would not have the personal knowledge of the alleged defamation, is not competent to file a private complaint for the alleged offences.
4. In his support learned counsel relied on the judgment of the Hon'ble Apex Court in Man Kaur (dead) by LRs Vs. Hartar Singh Sangha reported in (2010) 10 SCC 512. In Paragraph 18 of the said judgment, which was in the matter pertaining to the Specific Performance of contract, the Hon'ble Apex Court was pleased to summarize the position, as to, who Crl.P.No.1174/2012 5 should give the evidence regarding the matters involving personal knowledge, which is reproduced herein below:
"18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney-holder has done by any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts, or transactions.
If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder Crl.P.No.1174/2012 6 shall be examined, if those acts and transactions have to be proved.
(c) The attorney-holder cannot depose or give evidence in place of his principles for the acts done by the principal or transactions or dealings of the Principal, of which principle alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorised managers/attorney-holders or persons residing abroad managing their affairs through their attorney-holders.
Crl.P.No.1174/20127
(e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder.
(f) Where different attorney-holders had dealt with the matter at different stages of the transactions, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceedings, to establish or prove something with reference to his "state of mind" or "Conduct", normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to Crl.P.No.1174/2012 8 show his "readiness and willingness" fall under this category. There is however a recognized exception to this requirement.
Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happens to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
5. Second case, which the learned counsel for the petitioner relied upon is in A.C.Narayanan Vs.State of Maharashtra and another reported in (2015) 12 ACC 203, in the matter pertaining to Crl.P.No.1174/2012 9 Sections 138 and 142 of the Negotiable Instruments Act, 1881, the Hon'ble Apex Court was pleased to observe at Paragraph 15 as below:
"15. While holding that there is no serious conflict between the decisions in "M.M.T.C. and Janki Vashdeo Bhojwani", the larger Bench clarified the position and answered the questions framed in the following manner: (A.C. Narayanan Case, SCC pp.808-09, para 33) "33.1(i) Filing of complaint petition under Section 138 of the NI Act through power of attorney is perfectly legal and competent.
33.2(ii) The power-of-attorney holder can depose and verify on oath before the court in order to prove the contents of the complaint. However, the power-of-attorney holder must have witnessed the transaction as an agent of the payee/holder in due Crl.P.No.1174/2012 10 course or possess due knowledge regarding the said transactions.
33.3(iii) 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 has no knowledge regarding the transactions cannot be examined as witness in the case.
33.4(iv) In the light of Section 145 of the NI Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of NI Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on Crl.P.No.1174/2012 11 the complaint under Section 138 of the NI Act.
33.5(v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person".
6. In the same case, the Hon'ble Apex Court was also pleased to observe that Magistrate had taken cognizance of the complaint, without prima facie establishing the fact, as to, whether the Power of Attorney existed in the first place and whether it was in order. Further, complaint against the appellant therein was not preferred by the payee or the holder in due course and the statement of oath of the person who filed the complaint has also not stated that he filed the complaint having been instructed by the payee or holder Crl.P.No.1174/2012 12 in due course of the cheque. With the said observation, the Apex Court was pleased to hold that it was not open for the Magistrate to take cognizance and the appeals were allowed.
In the instant case, the private complaint filed clearly go to show that in the beginning paragraph ie., in Paragraph No.3 itself, the complainant has stated that he being the member of the Parliament and present President of J.D(S) Party in Karnataka, it is practically not possible and difficult for him to be present in the Court on all the dates of hearing, so as to assist, as such, he is being duly represented by a General Power of Attorney holder on his behalf to prosecute the case and he has been duly instructed, aware of the facts of the case in hand. Thus, the petition in the opening paragraph itself clearly mentions not only the fact that the Power of Attorney holder has been specifically Crl.P.No.1174/2012 13 instructed and authorized to institute the complaint but also he has the knowledge of the facts of the case.
Section 199(1) of the Cr.P.C reads as below:
"199. Prosecution for defamation- (1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf".Crl.P.No.1174/2012 14
7. Learned counsel for the respondents in his argument relied upon the judgment of the Hon'ble Apex Court in the case of John Thomas Vs. Dr.K.Jagadeesan reported in 2001 SCC (Cri) 974, wherein a complaint for defamation punishable under Section 199 of IPC against hospital by name "K.J.Hospital" was filed by one of its Director Dr.K.Jagadeesan (respondent before the Hon'ble Apex Court). The maintainability of the said complaint, not by the hospital, but by one of its Director was challenged. The Hon'ble Apex Court was pleased to observe that under Section 199 of Cr.P.C the collocation of the words "by some persons aggrieved" definitely indicates that complainant need not necessarily be the defamed person himself. Further, observing that even if the libelous imputation are not made directly against the person, but, it has the reasons to feel hurt, he has locus Crl.P.No.1174/2012 15 standi to file a complaint, Hon'ble Apex Court was pleased to dismiss the appeal.
8. In the instant case, the General Power of Attorney, a copy of which is produced for reference during the course of argument shows that the executant of the Power of Attorney ie., Sri.H.D.Kumaraswamy has stated that he is being aggrieved by the alleged act of the accused for which he intended to file a private complaint against the office bearers of a particular association and also publishers mentioned in the pamphlets. It is because of his pre occupation and inability to appear personally in the Court and to conduct the case, he is appointing Sri.K.T.Dhanukumar as his General Power of Attorney holder. Thereafter, he has prescribed as to what powers the Power of Attorney Holder has got to exercise on his behalf. Thus, it is clear that Sri.H.D.Kumaraswamy, in whose name the Power of Crl.P.No.1174/2012 16 Attorney has instituted the complaint in question has authorized the Power of Attorney to institute the present complaint and to prosecute the accused on his behalf. Further, in the very complaint itself, the complainant has stated that the General Power of Attorney holder has been duly instructed and also aware of the facts of the case in hand. Therefore, in view of there being no bar under Section 199 Cr.P.C for filing of petition through the Power of Attorney, in the instant case the Power of Attorney having clearly stated that not only he has been instructed by Sri.H.D.Kumaraswamy, to file a complaint on his behalf and to prosecute it and also the Power of Attorney clearly stating that he is aware of the facts of the case in hand, it cannot be said that he ought not to have instituted a complaint under Section 200 Cr.P.C for the alleged offences punishable under Sections 200, 501 and 502 of IPC.
Crl.P.No.1174/201217
In addition to the above, it is also to be noticed that what statement the Power of Attorney has made is only a sworn statement on oath for the purpose of registration of a criminal case and to set the ball of criminal proceeding in the trial Court in motion. About the contention of the petitioner that the present Power of Attorney holder alleged to be not having personal knowledge of the alleged facts of defamation, there would be relevant stages in the proceeding before the trial Court, where at, the accused may place his contention, the evidence before charge and the trial in the matter (provided the matter ripens for it), are those stages. As such, it cannot be concluded that the entire trial would be only through the General Power of Attorney holder or that the General Power of Attorney holder in the instant case, has no personal knowledge of the alleged facts of the case of the complainant. Crl.P.No.1174/2012 18
Therefore, I do not find any reason to quash the impugned order by allowing this petition. Accordingly, the petition stands dismissed as devoid of merit.
Sd/-
JUDGE GH