Meeta Rai vs Gulshan Mahajan

K.K. Srivastava, J.—By means of this petition filed u/s 482 Cr.P.C., the petitioner seeks the quashing of the impugned complaint filed u/s 138 of the Negotiable Instruments Act and the order of summoning passed by the Judicial Magistrate 1st Class, Amritsar. The copy of the complaint has been placed on record as Annexure P-5 and the order of summoning has been placed on record as Annexure P-6. One of the grounds urged on behalf of the petitioner is that the impugned complaint has not been filed by the payee or the holder in due course of the cheque which is alleged to have bounced and it was issued by the respondent. A perusal of the copy of the impugned complaint filed in the Court of Chief Judicial Magistrate. Amritsar (copy Annexure P-5) will show that the complaint was filed by one Gulshan Mahajan son of Amar Nath Mahajan c/o Pioneer Press. Katra Sher Singh, Amritsar. In para 1 of the impugned complaint, it was averred as under:-

"That the complainant is the husband of Sucheta Mahajan daughter of Shri Gian Chand Gupta and she has given authority letter for institution of the complaint against the accused for the dishonour of cheque. Even otherwise the complaint (complainant?) is fully conversant with the facts of the case on instant complaint."

Annexure P-7 is the copy of the authority letter which is said to have been issued by Smt. Sucheta Mahajan wife of the complainant Shri Gulshan Mahajan and it reads as under:-

"AUTHORITY LETTER"

Sucheta Mahajan wife of Sh. Gulshan Mahajan daughter of Sh. Gian Chand Gupta c/o Pioneer Press. Katra Sher Singh, Amritsar do hereby appoint and authorise my husband Shri Gulshan Mahajan son of Sh. Amar Nath Mahajan to institute complaint u/s 138 of negotiable Instruments Act against Mrs. Meeta Rai, Headmistress, Delhi Public School. Basant Vihar, New Delhi, Director RMS System and Chemical Speciality Pvt. Ltd. New Delhi regarding dishonoured Cheque amounting to Rs.2,75,000/ - bearing cheque Number 774346 dated 30.12.1993 drawn on Dena Bank. Nehru Place, New Delhi.

He is further authorised to give evidence in the case as he is conversant with all the facts of the payment of cheque. All, acts done by him in respect of filing of complaint in criminal court and engaging counsel, summoning the witness, filing of misc. Applications pertaining to this case, give reply if any as and when required in connection with this dishonoured cheque.

Dated: April. 1994

Sd/- Executant (SUCHETA MAHAJAN)"

It is not disputed that the cheque in question was issued in favour of Mrs. Sucheta Mahajan on 30.12.1993 for a sum of Rs.2,75,000/- only and it was signed for RMS System and Chemical Speciality Pvt. Ltd. and signed by Shri Sanjay Mahajan and M. Rai. It was drawn on Dena Bank, Nehru Place, New Delhi and was an Account Payee cheque vide copy Annexure P-8/A with its photostat copy. Also Section 142 of the Negotiable Instruments Act inter alia provides notwithstanding anything contained in the Criminal Procedure Code. 1973(2 of 1974)-

"(a) no court shall take cognizance of any offence punishable u/s 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) xx xx xx

(c) xx xx xx"

It is also not disputed that the impugned complaint has not been filed by Smt. Sucheta Mahajan who is the payee and holder in due course of the cheque in question. This brings to the consideration and the authorisation which is said to have been made by Smt. Sucheta Mahajan in favour of her husband-the complainant Gulshan Mahajan. The authority letter (copy Annexure P-7) has already been extracted and it will appear from this authorisation that it is a simple letter written by Sucheta Mahajan in April, 1994 conferring certain acts on her husband to be done by him and for on her behalf. This letter of authorisation cannot in law be equated to a document known as General Power of Attorney or for that matter a Special Power of Attorney which are to be there In executed on a non-judicial stamp paper. The learned counsel for the respondent-complainant placed reliance in Surinder Singh v. John Impex (Pvt.) Ltd., 1996(3)RCR 621. The learned Single Judge of this Court held that a General Power of Attorney holder can in law file a complaint for an offence u/s 138 Negotiable Instruments Act and the relevant discussion is to be found in para 12 of the authority which reads as under:-

"From the careful reading of the General Power of Attorney (Annexure P-2), it is evident that in the first instance Smt. Puna Devi along with her son-Surinder Singh and daughter Smt. Satwant Kaur, who are the joint owners of a plot bearing No. A-56, Defence Colony, New Delhi, authorised here real son Rajinder Singh to construct a building in accordance with the bye-laws on the said plot. These owners also authorised Shri Rajinder Singh to do everything necessary and material for building the construction on the said plot. Then power has been conferred upon Rajinder Singh to engage any Advocate. Arbitrator, Special Attorney, etc. On behalf of these executants. Power has also been given to Rajinder Singh to conduct any proceedings in the departments of Police, Forest, PWD, Electricity, Civil Courts and Revenue, etc. Then general power has been conferred authorising him to do all acts for which these executants are competent and the decision taken by the said Attorney would be acceptable to them. Lastly, this deed provides as under:-

"After the completion of house the general power of attorney will also do the above acts, will let the house on rent, after receiving the rent will issue receipts to the tenants. So this power of attorney has been written for confirmation.

When this document is read as a whole, especially the last portion, reproduced above, it becomes clear that Rajinder Singh has been authorised to construct a building on the said plot of land and thereafter he has been authorised to let out the house on rent, to collect the rent and to issue the receipts. General power has been conferred upon him to do all acts necessary for the recovery of the rent from a tenant. The mere fact that the word "criminal Court" has not been expressly mentioned, would not preclude the said Attorney from filing a complaint tinder Section 138 read with Section 142 of the Act when the cheque received by him towards the arrears of rent has been dishonoured. By filing a complaint under the said provisions of law, the Attorney is enforcing the recovery of the rent of the building for which he is duly authorised under this deed (Annexure P-2). The Sub-Divisional Judicial Magistrate fell in error in not giving true meaning to the words used in the General Power of Attorney (Annexure P.2) and thereby ignoring the real intention and object of the executant contained therein. After reading this document as a whole, the true import thereof is that Rajinder Singh is duly empowered even to file a complaint u/s 138/142 of the Act when the cheque issued towards the arrears of rent stands dishonoured."

The facts in the instant case are entirely different and distinct from the case of Surinder Singh (supra) inasmuch as in the instant case, there is no document of General Power of Attorney executed by Smt. Sucheta Mahajan in favour of her husband Shri Gulshan Mahajan and for that matter nor even his document of Special Power of Attorney authorising her husband to do certain acts for and on her behalf. Apart from it, it is relevant to note that the authority letter in nowhere undertakes that the executant, namely. Smt. Sucheta Mahajan would be bound by the acts done and conducted on behalf of her husband in respect of the matter which is the subject matter of authority letter. Learned Counsel for the petitioner cited the judgment reported as U.C. Saxena, Managing Director, Mehra Machines''& Equipments Pvt. Ltd., Noida v. Shri Madan Mohan. 1993(2) PLR 161 when the learned Single Judge of this Court held in para 7 as under:-

"As mentioned herein before, Madan Mohan complainant was neither the payee nor the holder in due course of the cheque and, therefore, he was not competent to institute the complaint. The learned trial Magistrate has gravely erred in having failed to consider the above aspect of the case. Therefore, I have no hesitation to hold that the court below could not have taken cognizance of the complainant (complaint?) as far as the offence u/s 138 of the Negotiable Instruments Act is concerned."

By applying the ratio of the decision in the case of U.C. Saxena (supra), in the instant case, the complaint filed by Shri Gulshan Mahajan, a person who has not been legally and validly authorised by means of a General Power of Attorney or a Special Power of Attorney cannot be held to be a properly instituted complaint in law and the same is liable to be quashed on that score alone. Since this goes to the root of the matter, it may not be necessary to deal with the other points urged by the learned counsel for the petitioner. Resultantly, this petition is allowed. The impugned complaint and the summoning orders are quashed qua the petitioner.