Karnataka High Court
Smt. Anuradha Bharath vs M/S. I.T.M.S. And Company on 25 March, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.909/2010
C/W
CRIMINAL APPEAL NO.910/2010
IN CRIMINAL APPEAL NO.909/2010:
BETWEEN:
SMT. ANURADHA BHARATH,
W/O SRI A.S. VISHNU BHARATH,
AGED ABOUT 52 YEARS,
NO.7/8, 2ND FLOOR, SOUKATH BUILDING,
S.J.P.ROAD, BENGALURU-2,
REPRESENTED BY HER G.P.A. HOLDER
SRI A.S. VISHNU BHARATH,
S/O SRI A.SATHYANARAYAN,
AGED ABOUT 58 YEARS. ... APPELLANT
(BY SRI K.R.ASHOK KUMAR, ADVOCATE)
AND:
1. M/S. I.T.M.S. AND COMPANY,
A PARTNERSHIP FIRM,
NO.28, EAST CIRCLE ROAD,
V.V.PURAM, BENGALURU-4.
2. SRI I.B.MANJUNATH,
S/O I. BHAKTHAVATSALAM. ... RESPONDENTS
(BY SRI M.J.ALVA, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF
CR.P.C PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL DATED
08.07.2010, PASSED BY THE XXI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AND XXIII ASCJ, BENGALURU IN
2
C.C.NO.18361/2003, ACQUITTING THE RESPONDENTS/ ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF
NEGOTIABLE INSTRUMENTS ACT.
IN CRIMINAL APPEAL NO.910/2010:
BETWEEN:
SRI CHETHAN BHARATH,
S/O SRI A.S.VISHNU BHARATH,
AGED ABOUT 29 YEARS,
NO.7/8, 2ND FLOOR, SOUKATH BUILDING,
S.J.P.ROAD, BENGALURU-2.
REPRESENTED BY HER GPA HOLDER
SRI A.S. VISHNU BHARATH,
S/O SRI A.SATHYANARAYAN,
AGED ABOUT 58 YEARS. ... APPELLANT
(BY SRI K.R. ASHOK KUMAR, ADVOCATE)
AND:
1. M/S. I.T.M.S. AND COMPANY,
A PARTNERSHIP FIRM,
NO.28, EAST CIRCLE ROAD,
V.V.PURAM, BENGALURU-4.
2. SRI I.B. MANJUNATH,
S/O I. BAKTHAVATSALAM.
3. SMT I.B. NAGARATHNA,
W/O SRI I. BAKTHAVATSALAM.
4. SRI I. BAJTAVATSALAM,
S/O I. MADAPPA SETTY.
5. SMT. SHAILA,
W/O SRI I.B.MANJUNATH,
RESPONDENT Nos.2 TO 5 ARE
R/AT NO.28, EAST CIRCLE ROAD,
V.V.PURAM, BENGALURU-04. ... RESPONDENTS
(BY SRI M.J.ALVA, ADVOCATE)
3
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF
CR.P.C PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL DATED
08.07.2010, PASSED BY THE XXI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AND XXIII ASCJ, BENGALURU IN
C.C.NO.15159/2004-ACQUITTING THE RESPONDENTS/ ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF
NEGOTIABLE INSTRUMENTS ACT AND ETC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 14.03.2022 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
These two appeals are filed against the judgment of acquittal dated 08.07.2010 passed in C.C.No.18361/2003 and C.C.No.15159/2004 and sought for an order to convict the respondents for the offence punishable under Sections 138 and 142 of the Negotiable Instruments Act and award the compensation double the value of the subject matter of the cheque and pass such other orders.
2. These two appeals are considered together as the respondents are acquitted before the Trial Court only on the ground that the complaint filed by the general power of attorney holder is not just and proper and hence these two matters are taken up together for common disposal since common question is involved in the matter.
4
3. The factual matrix of the case in C.C.No.18361/2003 is that respondent No.1 is a partnership firm represented by its partners 2 to 5 and all of them are actively participating in the day-to-day activities of the business since it is a family business. Accused Nos.2 to 5 approached the complainant for financial assistance for payment of money to procure Asphalt from M/s. PEC Ltd., and also for payment to the Commissioner of Central Excise and Customs, Chennai and to lift the Asphalt stored in the godown at Chennai. It is contended that the accused have jointly borrowed money from the complainant from time to time. In confirmation of the amount so borrowed from the complainant from time to time plus the interest accrued thereon, accused Nos.2 and 3 for and on behalf of accused No.1 have jointly executed an on demand promissory note and consideration receipt dated 01.07.2002 for an amount of Rs.18,60,000/- in favour of the complainant with an endorsement "amount taken from time to time with interest" agreeing to repay the same with interest at 2% per annum. In discharge of the said outstanding amount, accused No.2 as partner of accused No.1 has issued a cheque dated 01.07.2003 for Rs.18,60,000/- and the said cheque was returned with an endorsement "account 5 closed" and hence the legal notice was issued and the same was returned with an endorsement "information delivered on 08.08.2003 - not claimed". The notice was also sent through certificate of posting and the same was received by the accused. Inspite of the demand, the amount was not paid and hence the complaint is filed through the power of attorney holder.
4. In C.C.No.15159/2004, the case of the complainant/appellant herein before the Trial Court is in the same line of pleading as in C.C.No.18361/2003. It is contended that in discharge of the outstanding amount, the accused issued a cheque dated 01.07.2002 for a sum of Rs.30,74,000/- in favour of the complainant and when the same was presented, it was returned with an endorsement "account closed" and thereafter legal notice dated 22.07.2003 was issued through RPAD and certificate of posting and notice sent through RPAD was returned with an endorsement "information delivered on 08.08.2003 - not claimed" and notice sent through certificate of posting was served and he did not comply with the demand. Hence, the complaint is filed through power of attorney holder. 6
5. The relevant documents were placed before the Trial Court and cognizance was taken and thereafter on behalf of the complainant in C.C.No.18361/2003, the power of attorney holder was examined as P.W.1 and got marked the documents at Exs.P.1 to 27. The accused also examined himself as D.W.1 and got marked the documents at Exs.D.1 to 50. In C.C.No.15159/2004, the power of attorney holder was examined as P.W.1 and got marked the documents at Exs.P.1 to 27. The accused is examined as D.W.1 and got marked the documents at Exs.D.1 to 42. The Trial Court after considering the material on record, raised the common points for consideration: (1) Whether the complaint filed by the general power of attorney holder is just and proper (2) Whether the complainant proves that accused No.2 has issued cheque marked as Ex.P.4 towards legally recoverable debt? (3) Whether accused No.2 proves that P.W.1 has misused the cheques handed over to him as a security to avail loan from the bank (4) What order?
6. The Trial Court considered only point No.1 and answered it as negative and acquitted the accused and did not answer point Nos.2 and 3 in coming to the conclusion that it does not arise for consideration. The Trial Court while passing 7 the order comes to the conclusion that as per the evidence of P.W.1 he is the general power of attorney holder of the complainant and he has produced the copy of general power of attorney dated 13.02.2006 which is marked as Ex.P.20. The said document is an incomplete document. The power of attorney holder has not put his signature and the same is blank. Even the signature of the attested witness is also blank. Regarding authority to adduce evidence by the power of attorney holder, the learned counsel for the complainant has relied upon a decision reported in AIR 2009 SC 422 and the Trial Court comes to the conclusion that the said decision is not applicable to the case because the complaint was filed in the year 2003 through the general power of attorney holder. The general power of attorney produced by P.W.1 is of the year 2006 and the complainant ought to have produced the power of attorney of the year 2003.
7. The Trial Court also held that when the complaint is filed under Section 200 of Cr.P.C., the Magistrate taking cognizance of the offence and complaint shall examine upon oath the complainant and the witnesses present and the substance of the such examination shall be reduced in writing and shall be 8 signed by the complainant and the witnesses and also by the Magistrate. It is observed that the complainant has not put her signature on the complaint, but the general power of attorney holder of the complainant has put his signature. When P.W.1 had no authority to present the complaint during 2003, the sworn statement of P.W.1 is nothing but that of the witness. The examination of the complainant on oath is mandatory. The very general power of attorney produced by P.W.1 discloses that he had no authority either to present the complaint or to adduce evidence on oath for taking cognizance. P.W.1 has filed affidavit in lieu of chief examination on 08.02.2006. Even though the affidavit marked as Ex.P.1 discloses about the filing of power of attorney, it is not produced on the date of filing the affidavit and not produced on 04.07.2006, i.e., the date of his further examination-in-chief, but produced the copy of the power of attorney on 14.09.2006. The copy of the general power of attorney marked as Ex.P.20 is dated 13.02.2006. Taking note of all these material into consideration, the Trial Court comes to the conclusion that for taking of cognizance itself is not proper and it vitiates the entire proceedings and hence acquitted 9 respondent/accused answering point No.1 as negative. Hence, the present appeals are filed before this Court.
8. It has to be noted that both the complaints are filed by the power of attorney holder, who claims that he is the husband and son of the respective complainants. It is contended that the Trial Court lost sight of the relationship between the complainants and the general power of attorney holder. The general power of attorney of the year 2003 ought to have been produced, but general power of attorney of the year 2006 was produced at the time of recording the evidence. This is only irregularity and the same can be cured and it was only a bonafide mistake and the Trial Court has not given an opportunity to the complainant to rectify the said mistake. The Trial Court has not applied its mind and the object of examining the witness/general power of attorney holder is to test whether the allegations made in the complaint will make out a prima facie case. The learned counsel would contend that in other cases against the same accused, general power of attorney holder was examined and the same is accepted. The learned counsel submits that it is only a curable irregularity under Section 465 of Cr.P.C. and the very approach of the Trial Court is erroneous. 10 The learned counsel submits that in other cases, general power of attorney of 2002 were produced and the matter also went upto Supreme Court of India and it is borne out in the judgment rendered by the High Court, wherein in paragraph No.22 it has discussed the authority of the power of attorney holder. The learned counsel submits that a separate application is filed under Section 391 of Cr.P.C. to receive the certified copy of general power of attorney executed by the complainant on 19.07.2000 in favour of P.W.1, which was produced in C.C.No.19275/2003 by condoning the delay and the complainant may be permitted to adduce the additional evidence by placing the power of attorney.
9. The learned counsel in support of his arguments relied upon the judgment of this Court in the case of M/S. J.C.GUPTA AND SONS v. SRI R. NARASIMHA REDDY AND OTHERS reported in 2019(1) Kar.L.R.110, wherein it is held that the rules of procedures are meant to sub-serve the cause of justice and are not intended for punishment of parties and the Court should not be on hyper-technical grounds.
10. The learned counsel also relied upon the judgment of the Apex Court in the case of UDAY SHANKAR TRIYAR v. RAM 11 KALEWAR PRASAD SINGH AND ANOTHER reported in AIR 2006 SC 269, wherein the Apex Court observed that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice.
11. The learned counsel also relied upon the judgment of the Apex Court in the case of HARYANA STATE COOP. SUPPLY AND MARKETING FEDERATION LTD. v. JAYAM TEXTILES AND ANOTHER reported in AIR 2014 SC 1926 and brought to the notice of this Court paragraph No.7, wherein it is held that procedural defects and irregularities, which are curable, should not be allowed to defeat substantive rights or to cause injustice and the matter was remitted to the Trial Court for fresh trial.
12. Per contra, the learned counsel for the respondents would submit that the complaint is filed claiming that power of attorney is executed in favour of the power of attorney holder and the power of attorney holder is not an illiterate and he is a Chartered Accountant. The complaint is filed in the representative capacity and the power of attorney is not filed along with the complaint. No doubt, the power of attorney 12 holder is claiming that he is the husband and son of the complainants, respectively in both the matters. The Trial Court has taken cognizance without the power of attorney and the very taking of cognizance itself is erroneous and apart from that, the complaint was filed in 2003 and power of attorney produced is of the year 2006 and hence as on the date of filing of the complaint, there was no general power of attorney and hence the Trial Court has not committed any error. The learned counsel would contend that now the general power of attorney is produced and the same is not in respect of this case. The appellant created the said document subsequent to the disposal of the said case. No grounds are made out to allow the application filed under Section 391 of Cr.P.C and no effort was made to produce the same before the Trial Court and instead of that, produced the document of general power of attorney of the year 2006 and gave evidence based on the power of attorney of 2006 and the same cannot be permitted.
13. The learned counsel in support of his arguments relied upon the judgment of this Court in the case of CHANDRASHEKHARAPPA v. SHARANABASAPPA reported in 2011 (1) Kar.L.J 444. Relying upon this judgment, the 13 learned counsel would contend that permission is required to file the complaint. The complaint filed by payee's power of attorney holder on behalf of payee and Magistrate, on basis of sworn statement of payee's power of attorney holder taking cognizance of offence and directing issue of process to drawer of dishonoured cheque. It is held that while payee's power of attorney holder can present complaint on behalf of payee, he cannot prosecute case further without specific permission of the Court as mandated under Section 302 of Cr.P.C. In the absence of such permission by the Court, proceedings instituted pursuant to filing of complaint is liable to be set aside.
14. The learned counsel also relied upon the judgment of Apex Court in the case of PRASADI DEVI v. NAGAR PALIKA SAWAI MADHOPU reported in 2018 (1) SCJ 524, wherein the Apex Court observed with regard to the examination of general power of attorney holder and comes to the conclusion that the same is not a substitute for plaintiff or defendant.
15. The learned counsel relied upon the judgment of the Apex Court in the case of S. KESARI HANUMAN GOUD v. ANJUM JEHAN AND OTHERS reported in 2013 AIR SCW 14 3561, wherein the Apex Court observed that the power of attorney holder cannot depose in place of principal. The word 'acts' in Rules 1 and 2 does not include deposing in place of principal.
16. Having heard the respective learned counsel, on perusal of the material on record and also considering the principles laid down in the judgments referred supra, the points that would arise for the consideration of this Court are:
(i) Whether the Trial Court has committed an error in acquitting the respondents/accused in both the cases?
(ii) Whether the appellant has made out a ground to allow the application filed under 391 of Cr.P.C. to place on record the additional evidence?
(iii) What order?
Point No.(i):
17. Having heard the respective learned counsel and also on perusal of the material on record, it is not in dispute that both the complaints are filed by the power of attorney holder. No doubt, the power of attorney holder is none other than the 15 husband and father of the complainants, respectively. An individual and separate complaints are filed. It has to be noted that both the complaints are filed in 2003 and while filing the complaint through the power of attorney holder, power of attorney must be accompanied with the complaint and the same is not accompanied. The Trial Court also taken note of the power of attorney, which is marked before the Trial Court and comes to the conclusion that the same is incomplete. It is important to note that it is observed in the order that while examining in chief also, the power of attorney was not produced. But, subsequently power of attorney was produced and marked and the said power of attorney is of the year 2006. The same is not disputed by the learned counsel for the appellant. The fact is that the complaint is filed through the power of attorney holder and I have already pointed out that the same must be accompanied with the complaint. The Trial Court has even gone to the extent of saying that very taking of cognizance is erroneous. Apart from that, the document is filed in the year 2006, after the examination of the witness and the same is of the year 2006. When such evidence is available before the Court on oath by the power of attorney holder without the power 16 of attorney, the said evidence also cannot be relied upon by the Trial Court since it is no evidence in the eye of law. When such being the factual aspects, the very contention of the learned counsel for the appellant that the Trial Court has committed an error and ought to have given an opportunity cannot be accepted. It has to be noted that the power of attorney is produced before the Trial Court and it is not the case of the appellant that the power of attorney is not produced before the Trial Court but power of attorney produced is of the year 2006 and the complaint was filed in the year 2003 and the very initiation of the criminal prosecution against the respondents herein is without any authority and even taking of cognizance is also without the power of attorney which vitiates the very initiation of the criminal prosecution. Hence, I do not find any error committed by the Trial Court in passing the impugned order and I do not find any defect in the order of the Trial Court. Hence, I answer point No.(i) as negative.
Point No.(ii):
18. No doubt, the appellant has produced the power of attorney of the year 2000 executed by each of the complainant in favour of the power of attorney holder and the learned 17 counsel would contend that there is no conflict of interest between the complainant and the power of attorney holder and relationship between them is wife and son. It is only an irregularity on the part of the complainant for the reason that the original power of attorney of the year 2000 had been produced by the appellant in C.C.No.19275/2003 and the same has been accepted by the Court in the earlier proceedings. This application is resisted by the respondents by filing the statement of objection contending that the address of the appellant and the general power of attorney holder furnished in the said power of attorney is different than the address of the appellant furnished in the above appeal. The conduct of the appellants and the power of attorney holder goes to show that they are experts in manipulating the documents and power of attorney ought to have produced at the time of filing the complaint itself and the same is not produced and even at the time of adducing the evidence also, the same is not produced and instead of power of attorney produced is of the year 2006. This power of attorney is not in respect of this particular case and the existence of earlier power of attorney cannot be made use of to cure the defects and hence the same cannot be entertained.
18
19. Having heard the respective learned counsel and also having considered the judgments relied upon by the respective Courts, no doubt it is settled law that rules of procedures are meant to sub-serve the cause of justice and are not intended for punishment of parties as held by this Court in the case of M/s. J.C.Gupta (supra). The Apex Court in the case of Haryana State Coop Supply and Marketing Federation Ltd., (supra) has held that procedural defects and irregularities which are curable, should not be allowed to defeat substantive rights or to cause injustice. The other judgments discloses with regard to seeking for permission under Section 302 and apart from that, the power of attorney holder cannot give evidence in the place of original complainant. It is settled law that if the power of attorney holder is conversant with the facts of the case and the material question involved in the matter, he can be examined and deposed before the Court. Now, the question before the Court is not the competency of the power of attorney holder in giving evidence. The question before the Court is that the power of attorney is not produced before the Trial Court, which is in existence. It has to be noted that in the case on hand, the appellants have produced the power of attorney of the year 2006 19 and it was not their case that there was a power of attorney prior to 2000 and first of all, when the power of attorney holder has filed the complainant in the year 2003 and the same is not accompanied with power of attorney. Apart from that, even at the time of examination also, the present power of attorney is not produced before the Trial Court and instead of produced the power of attorney of the year 2006. It is not their case that there was a power of attorney prior to the filing of the complaint. When such being the material on record and when the witness also gave the evidence before the Trial Court on oath subsequent to the production of the power of attorney of the year 2006 and based on that power of attorney, evidence was given, the very contention of the appellant that it is only a curable defect cannot be accepted. First of all, the evidence which has been given based on the subsequent power of attorney is not a evidence in the eye of law and apart from that, the appellant was not diligent in placing the document and it was not the case of the appellant that there was a power of attorney prior to 2003. When such being the factual aspects and when he relied upon the subsequent power of attorney of the year 2006 and the complaint was filed in the year 2003, it is clear that the 20 appellant was not diligent and even committed blunder in producing the power of attorney of the year 2006 and hence I do not find any force in the contention of the appellant to invoke Section 391 of Cr.P.C. to produce additional documents and to cure the defects and the same is not a curable defect as contended by the learned counsel for the appellant since power of attorney of the year 2006 is relied upon. Hence, I do not find any reasons to allow the application filed under Section 391 of Cr.P.C. Hence, I answer point No.(ii) as negative. Point No.(iii):
20. In view of the discussions made above, I pass the following:
ORDER
(i) The applications filed under Section 391 of Cr.P.C.
are dismissed.
(ii) The appeals are also dismissed.
Sd/-
JUDGE MD