Surinder Singh vs John Impex (Pvt.) Ltd.

P.K. Jain, J.—This Order shall dispose of two criminal revisions Nos. 195 and 197 of 1996, which involve common questions of law and facts.

Shri Surinder Singh, the Petitioner in Cr. Revision No. 195 of 1996 alongwith his mother Smt. Puna Devi, Petitioner in Cr. Revision No. 197 of 1996 and sister Smt. Satwant Kaur, is the owner of a house bearing No. A-56, Defence Colony, New Delhi. This property has been let out to the Respondent No. 1. Respondent No. 2 is the Managing Director and Respondent No. 3 is the Director of Respondent No. 1, and are responsible for the business and affairs of Respondent No. 1-Company,

On 8.7.1995, Respondent No. 2 issued cheque for Rs. 16,000/- drawn upon Bank of India, Cannought Circus, New Delhi, in favour of the Petitioner - Shri Surinder Singh on account of rent of the said building. Similarly the said Respondent issued a cheque dated 5.7.1995 for Rs. 44,800/- drawn upon the same Bank in favour of Smt. Punna Devi on account of rent of the said building. Both these cheques Were presented to Punjab & Sind Bank, Mohali, through Shri Rajinder Singh, holding General Power of Attorney on behalf of these Petitioners. Both the cheques were dishonoured on account of being insufficient funds. Legal notices were issued on 9.9.1995, sent under registered cover on 12.9.1995, in addition to a copy sent under postal certificate. However, payment was not made within the prescribed limit of time. Consequently, both the Petitioners filed complaints through Shri Rajinder Singh, holding the General Power of Attorney on their behalf u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ''the Act''). After recording preliminary evidence, Sub Divisional Judicial Magistrate, Kharar, has dismissed the complaint solely on the ground that Rajinder Singh has no power or authority on behalf of the complainants to file these complaints. Feeling aggrieved Shri Surinder Singh and his mother Smt. Puna Devi have filed these petitions u/s 482 of the Code of Criminal Procedure for quashing the order dated 14.2.1996, passed by the said Sub Divisional Judicial Magistrate, and for a direction to decide the complaint in accordance with law on merits.

Notice of motion was issued to the Respondents.

I have heard the learned Counsel for the Petitioners, has argued that a complaint u/s 138 of the Act can be filed by a ''payee'' or the ''holder in due course of the cheque'' through a duly appointed agent. It has been further argued that Rajinder Singh has been appointed a General Attorney by Sh. Surinder Singh and Smt. Puna Devi by General Power of Attorney dated 218.1979 (Annexure P.2) whereby he has the necessary power to institute the complaints in question. In support of this plea the learned Counsel has placed reliance upon a judgment of the apex Court rendered in Vishwa Mitter of Vijay Bharat Cigarette Stores, Dalhousie Road, Pathankot Vs. O.P. Poddar and Others, . Reliance has also been placed upon a judgment of the Kerala High Court in Hamsa v. Ibrahim Hajee 1993 ISJ 722 and a judgment of the Madras'' High Court rendered in M/s Ruby Leather Exports v. K. Venu Rep. Vandana Chemicals etc. 1994 (1) Crimes 820.

On the other hand Shri R.A. Jain, Advocate, learned Counsel for the Respondent, has argued that in view of the provisions of Section 142 of the Act, a complaint u/s 138 of the Act can be filed either by a payee or the holder in due course of the cheque, and none else. It has been further argued by the learned Counsel that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other modes of performance are necessarily for bidden.

Respective arguments have been considered carefully. Section 142 of the Act, so far as it is relevant for our purposes, reads as under:

Notwithstanding anything contained in the Code of Criminal Procedure, 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.

From a bare reading of this section, it is evident that a complaint u/s 138 of the Act can be filed by a payee or a holder in due course. The question is as to whether a payee or a holder in due course can file the complaint through is duly authorised agent. In Vishwa Miner''s case (supra), the apex Court expounded the law as under:

From a combined reading of Section 4(2) with Section 190 of the Code of Criminal Procedure it can be said that upon a complaint filed by a person setting out facts therein which constitute the offence before a Magistrate specified in Section 190, the Magistrate would be competent to take cognizance of the offence irrespective of the qualifications or eligibility of the complainant to file the complaint. However, where a provision to the contrary is made, in any statute, which may indicate the qualification or eligibility of a complainant to file the complaint, the Magistrate before taking cognizance is entitled and has power to inquire whether the complainant satisfies the eligibility criteria. Thus where the complainant, who was not only the dealer in the beedies manufactured and sold by the registered owner of the trade mark, but he was also the constituted attorney of the owners of the registered trade mark, had filed a complaint alleging the commission of the offences of infringement of trade mark owned by his principals, by the accused under Sections 78 and 79 of Trade and Merchandise Marks Act, 1958 and Section 420 IPC, which was dismissed by the Magistrate on the sole ground that the complainant being not the registered owner of the trade mark, he was not competent to file the complaint, the order of the Magistrate dismissing the complaint and refusing to issue process would be illegal.

From a perusal of the above observations of their Lordships of the Supreme Court, it is evident that where a provision is made in any statute indicating the qualification or eligibility of a complainant to file a complaint, the Magistrate, before taking cognizance, has the power to inquire whether the complainant satisfies the eligibility criteria From a perusal of Section 142 of the Act, the only qualification or the eligibility of the complainant is that he should either be a payee or the holder in due course of a cheque. There is nothing in the said Section to indicate that the complaint can be filed only by the payee or the holder in due course personally and not through his duly authorised agent.

The question directly arose before the Kerala High Court in Hamsa''s case (supra). After noticing the provisions of Sections 138 and 142 of the Act and Sections 198 and 199 of the Code of Criminal Procedures it was held that a complaint u/s 138 of the Act can be filed by an agent or power of attorney holder. It was explained that it would not be in the interest of justice to construe the provision as containing restriction that the complaint should be made by the payee or the holder in due course (as the case may be) "personally".

A similar question arose before the Madras High Court in the Case of Ruby Leather Exports (supra). In para 23 of the judgment the law on the point has been enunciated as under:

The eligibility criteria under the Negotiable Instruments Act is that the complaint should be made by the payee or as the case may be, the holder in due course of the cheque. This eligibility criteria, does not get disturbed, if a Power of Attorney Agent duly constituted initiates private complaints, for as I have stated earlier, the Power of Attorney Agent, steps into the shoes of the payee or the holder in due course of the cheque. It is not as though, total strangers not contemplated u/s 142(a) of the At, had initiated complaints which can be done under the general law, for there is no specific locus standi, for setting the criminal law in motion, unless as I have stated earlier, eligibility criteria intervenes. Once a Power of Attorney agent makes the complaint, for all practical purposes, it is the payee or the holder in due course of the cheque, who is the complainant. The words "in writing" mentioned in Section 142(a) of the Negotiable Instruments Act, to my mind, cannot be restricted to mean, that it must be in writing by the payee himself or the holder in due course himself, for, if it is made by the Power of Attorney Agent, it tantamounts to the complaint being made by the payee or as the case may be the holder in due course of the cheque. As rightly pointed out by one of the counsel, the words "in writing" appear to have been introduced u/s 142(a) of the Act, contra distinguished from Section 2(d) of the Code of Criminal Procedure, which postulates an oral complaint as well.

In para 27 of the judgment it was further clarified that the definition of payee or holder in due course, u/s 7 and 9 of the Act, even if substituted in Section 142(a) of the Act, cannot prohibit a Power of Attorney Agent, acting on behalf of the said payee or the holder in due course. Whenever the statute required a particular act to be done personally it stood so mentioned. When the statute does not insist the complaint should be filed personally by the payee or the holder in due course, such a meaning cannot be read into it. The Power of Attorney Agent is virtually a payee himself or the holder in due course for the purposes of Section 142(a) of the Act. Therefore, the necessary conclusion is that a Power of Attorney Agent of the payee or the holder in due course of the cheque is competent to make a complaint in writing u/s 138 of the Act to facilitate valid cognizance being taken by the Magistrate.

Then arises a question of fact as to whether Shri Rajinder Singh has the necessary power of attorney under the deed dated 21.8.1979 (Annexure P.2) to file the present complaint. The Sub Divisional Judicial Magistrate has answered this question in the negative and as a consequence thereof he has dismissed the complaint in question.

The main object in construing a deed is to ascertain the intention of a party from the language used and to effectuate such intention where not inconsistent with the rule of law. The rule is to ascertain the intention of the parties to the document after considering all the words in their ordinary natural sense. Courts should not over-rule the expressed intention of the parties on the grounds that the Judges know the business of the people better than the people know it themselves. The law is always anxious to save the deed, if possible.

From the careful reading of the General Power of Attorney (Annexure P.2) it is evident that in the first instance Smt. Puna Devi alongwith 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 her real son Rajinder Singh to construct a building in accordance with the bye-laws on the said plot. Thee 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, P.W.D., 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 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 performance of his duties under the deed. In to her words, he can definitely file a suit for 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 u/s 138 read with Section 143 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 under Sections 138/142 of the Act when the cheque issued towards the arrears of rent stands dishonoured.

For the reasons mentioned above, this Revision is accepted. The order dated 14.2.1996 (Annexure P. 1) passed by the Sub Divisional Judicial Magistrate, Kharar, is hereby set aside and the said Sub Divisional Judicial Magistrate is directed to proceed with the complaint in the light of the observations made above.