Delhi District Court
Jassum Propcon Projects Pvt. Ltd vs Sushma Bajaj on 3 December, 2018
IN THE COURT OF SH. GULSHAN KUMAR,
ADDITIONAL SESSION JUDGE 03
SOUTH EAST DISTRICT, SAKET COURTS
NEW DELHI
IN THE MATTER OF
CNR NO. DLSE010070452018
CR NO. 635/18
Jassum Propcon Projects Pvt. Ltd.
Office at : ABW Tower, IFFCO Chowk,
Gurgaon - 122003. .......... Revisionist
Versus
Sushma Bajaj
W/o Sh. Kulbhushan Rai Bajaj,
R/o 200, Sukhdev Vihar, New Delhi. .......... Respondent
DATE OF INSTITUTION : 27.08.2018 DATE OF RESERVING ORDER : 03.12.2018 DATE OF PRONOUNCEMENT : 03.12.2018
1. Vide this Order I shall dispose of criminal revision petition under Section 397 Cr.P.C. filed by the revisionist against order dated 24.04.2018 passed by Ld. Metropolitan Magistrate whereby the applications filed on behalf of revisionist under Section 91 Cr.P.C., second under Section 311 Cr.P.C. and third under Section 284 Cr.P.C. were dismissed (hereinafter referred to as impugned order).
CR No. 635/18 Jassum Propcon Projects Pvt. Ltd. Vs. Sushma Bajaj Page 1 of 82. In brief the facts of this case are that revisionist is a company which deals in the business of development and construction of real estate projects. It is stated that complainant has not been examined till date. Complainant has not put the complete set of facts before Ld. Trial Court especially with regard to claim of payment of Rs.75,00,000/ (Rupees Seventy Five Lacs only) in cash in the year 2007. The complainant was deliberately not appearing before Ld. Trial Court with a view to avoid cross examination. The complainant had rather appointed her husband as her power of attorney who had failed to prove and produce any evidence that he has any personal knowledge of the transaction in question. It is stated that Ld. MM had dismissed the application under Section 284 Cr.P.C. without giving any cogent reasons.
3. Ld. Counsel for respondent submits that the order of Ld. MM does not suffer from any infirmity or illegality.
4. Ld. Counsel for the revisionist argued on the lines of his revision petition and grounds thereof.
5. I have heard the arguments advanced on behalf of the parties.
CR No. 635/18 Jassum Propcon Projects Pvt. Ltd. Vs. Sushma Bajaj Page 2 of 86. Before proceeding further, I deem it fit to reproduce Section 91 Cr.P.C., Section 284 Cr.P.C. and Section 311 Cr.P.C. which are read as under:-
Section 91 Cr.P.C.-
Summons to produce document or other thing. - (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this Section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed -
(a) to affect, sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Banker's CR No. 635/18 Jassum Propcon Projects Pvt. Ltd. Vs. Sushma Bajaj Page 3 of 8 Books Evidence Act, 1891 (3 of 1891) or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegram authority.
Section 284 Cr.P.C.-
When attendance of witness may be dispensed with and commission issued. - (1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Court or Magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court or Magistrate may dispense with such attendance and may issue a commission for examination of the witness in accordance with the provisions of this Chapter.
Provided that where the examination of the President or the VicePresident of India or the Governor of a scale or the Administrator of a Union territory as a witness is necessary for the ends of justice, a commission shall be issued for the examination of such a witness.
(2) The Court may, when issuing a commission for the CR No. 635/18 Jassum Propcon Projects Pvt. Ltd. Vs. Sushma Bajaj Page 4 of 8 examination of a witness for the prosecution direct that such amount as the Court considers reasonable to meet the expenses of the accused, including the pleader's fees, be paid by the prosecution.
Section 311 Cr.P.C.-
"Power to summon material witness, or examine person present. - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case."
7. It was observed by Hon'ble Supreme Court of India in "A.C. Narayan Vs. State of Maharashtra, Crl. Appeal No. 73/2007 decided on 13.09.2013" as under:-
......
21. The power of attorney holder is the agent of the grantor. When the grantor authorizes the attorney holder to initiate legal proceedings and the attorney holder accordingly initiates such legal proceedings, he does so as the agent of the grantor and the initiation is by the grantor represented by his attorney holder and not by the attorney CR No. 635/18 Jassum Propcon Projects Pvt. Ltd. Vs. Sushma Bajaj Page 5 of 8 holder in his personal capacity. Therefore, where the payee is a proprietary concern, the complaint can be filed by the proprietor of the payee, the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor, and the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor. However, we make it clear that the power of attorney holder cannot file a complaint in his own name as if he was the complainant. In other words, he can initiate criminal proceedings of behalf of the principal.
22. From a conjoint reading of Section 138, 142 and 145 of the NI Act as well as Section 200 of the Code, it is clear that it open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint.
However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the Court and to examine him upon oath for taking decision whether or not to issue CR No. 635/18 Jassum Propcon Projects Pvt. Ltd. Vs. Sushma Bajaj Page 6 of 8 process on the complaint under Section 138 of NI Act. For the purpose of issuing process under Section 200 of the Code, 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 the NI Act. It is only if and where the Magistrate, after considering the complaint under Section 138 of the NI Act, documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness(s) is required, the Magistrate may call upon the complainant to remain present before the Court and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the NI Act.
8. In the light of the above discussion, it is very clear that the Power of Attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 NI Act. There is only an exception to the above when the Power of Attorney holder of the complainant does not have a personal knowledge about the transactions then he cannot be examined. In the present case, husband of the complainant is her Power of Attorney who has complete knowledge of the case and the transactions and there is no reason why husband of the complaint cannot depose as a witness. The Power of CR No. 635/18 Jassum Propcon Projects Pvt. Ltd. Vs. Sushma Bajaj Page 7 of 8 Attorney holder cannot file a complaint in his own name as if he was the complainant, but he can initiate the criminal proceedings on behalf of his principal.
9. In view of the above discussion, I do not find any illegality or infirmity in order dated 24.04.2018 passed by Ld. MM. Accordingly, the present criminal revision petition stands dismissed.
Criminal Revision Petition record be consigned to record room.
Trial Court Record be sent back to court concerned along with copy of order.
Copy of the order be given dasti.
ANNOUNCED IN THE OPEN COURT (GULSHAN KUMAR)
ON 03.12.2018 ASJ03, S.E., SAKET COURTS
NEW DELHI
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