Biswajit Kar vs The State of West Bengal & Anr.

The petitioner herein challenges the judgment and order of conviction dated 01.10.2013 passed by the learned Additional District and Sessions Judge, 2nd Fast Track Court, Bichar Bhawan, Calcutta, in connection with Criminal Revision No. 123 of 2012, thereby affirming the judgment and order of conviction passed by the learned Metropolitan Magistrate, 8th Court, Calcutta.

Although in the revisional application the petitioner has taken all the grounds including veracity of the statement of the witnesses and documents, but in course of argument the learned Counsel focused only on point of law i.e. regarding the acceptability of the complaint itself, in view of the definition ''payee''. The learned Counsel appearing on behalf of the petitioner mainly relied on the decision reported in (2011) 4 Supreme Court Cases 275 (MILIND SHRIPAD CHANDURKAR Vs. KALIM M. KHAN AND ANOTHER) and argued where the payee is a proprietary concern, the complaint can be filed by; (i) the proprietor of the proprietary concern, describing himself as the sole proprietor of the ''payee'';

(ii) the proprietary concern, describing itself as the sole proprietary concern, represented by its sole proprietor; and

(iii) the proprietor or the proprietary concern represented by the attorney-holder under the power of attorney executed by the sole proprietor.

The said decision speaks that it shall not be permissible for an attorney holder to file the complaint in his own name as if he was the complainant. He can initiate criminal proceedings on behalf of the principal.

The learned Counsel appearing on behalf of the petitioner further contended that in this case the complainant himself has not been examined and that there is no authorization on behalf of the complainant to the power of attorney holder to file the petition of complaint under Section 138 of N.I. Act.

As against this, the learned Counsel appearing on behalf of the private opposite party No. 2 (Complaint of C Case No. 11606 of 2007) argued, by showing xerox copy of his application filed before the said trial court which speaks that such an application was filed before the learned trial court with a request to grant permission to the complainant for filing petition of complaint under Section 138 of Cr.P.C. against the present petitioner accused persons. Thereafter, learned trial court has proceeded with the trial which indicates that the learned trial court has given him such permission.

This Court is armed with a decision of Three Judges'' Bench of Hon''ble Apex Court specially constituted to deal with the reference because prior to that there were divergent of opinions whether the ''payee'' must examine himself in respect of the complaint and whether criteria of Section 142 (a) of N.I. Act would stand satisfied if the complaint itself is filed in the name of the payee or the holder of the cheques himself. The Three Judges'' Bench then took up the issue in connection with A.C. Narayanan vs. State of Maharashtra, reported in AIR 2014 SC 630. The Hon''ble Three Judge Bench of the Supreme Court noted the questions which had to be decided by it in terms of the reference order as under: "(i) Whether a Power of Attorney holder can sign and file a complaint petition on behalf of the complainant?/Whether the eligibility criteria prescribed by Section 142 (a) of N.I. Act would stand satisfied if the complaint petition itself is filed in the name of the payee or the holder in due course of the cheque?

(ii) Whether a Power of Attorney holder can be verified on oath under Section 200 of the Code?

(iii) Whether specific averments as to the knowledge of the Power of Attorney holder in the impugned transaction must be explicitly asserted in the complaint?

(iv) If the Power of Attorney holder fails to assert explicitly his knowledge in the complaint then can be Power of Attorney holder verify the complaint on oath on such presumption of knowledge?

(v) Whether the proceedings contemplated under Section 200 of the Code can be dispensed with in the light of Section 145 of the N.I. Act which was introduced by an amendment in the year 2002?"

After considering those relevant provisions of the N.I. Act, and the points to be decided, the Hon''ble Apex Court clarified the legal position and answered accordingly: "(i) Filing of complaint petition under Section 138 of N.I. Act through power of attorney is perfectly legal and competent.

(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 course or possess due knowledge regarding the said transactions.

(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 a witness in the case.

(iv) In the light of Section 145 of N.I. 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 the N.I. Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant or his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.

(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."

Therefore, whether the complaint can be filed by the power of attorney holder or not is no more res integra. Accordingly, this Court is of the view that the issue of legality and maintainability of filing of the complaint has not leg to stand on. Both the Courts below have considered and scrutinized the evidence very meticulously and also considered the documents in its proper perspectives and since nothing has been shown by the present petitioner that there is travesty of justice, this Court is not inclined to re-appreciate the evidence. Since, the both courts below come to a concurrent finding, this court does not find any reason to take a different view.

Accordingly, the impugned judgment passed by the learned Additional District and Sessions Judge, 2nd Fast Track Court, Bichar Bhawan, Calcutta in connection with Criminal Revision No. 123 of 2012 arose out of Complaint Case No. 11606 of 2007 is hereby affirmed. The criminal revisional application stands dismissed. The learned trial court shall take all possible steps to see that the order of conviction is complied with.

Let a copy of this order and the L.C.R. (if any) be sent to the learned Court below for information and taking necessary action in accordance with law.

Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.