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Judgment
Dr. Sanjeeb K Panigrahi, J.
Since common questions of fact and law are involved in the above-mentioned matters, the same were heard together and are being disposed of by this common judgment. However, for the sake of convenience and proper adjudication, CRLMC No.476 of 2026 is treated as the leading case.
The Petitioner represented through its sole Proprietor Minati Pattnaik, in CRLMC No.476 of 2026, has challenged the order dated 22.01.2026 passed by the learned S.D.J.M., Bhubaneswar in ICC No.1649 of 2020, wherein though the learned trial court was pleased to allow the petition filed by the Petitioner for acceptance of the Special Power of Attorney dated 29.07.2024 executed in favour of her close business associate Shivaji Jaysingh only to conduct the case and adduce evidence on behalf of the complainant/Petitioner only those portion which are in due knowledge, but she was not allowed to give evidence to those facts or evidence which can be deposed by the complainant in her personal capacity and also not allowed to admit the examination-in-chief in the form of affidavit filed by the complainant on the ground that the same is illegal and cannot sustain in the eye of law.
The Petitioners in CRLMMC No.1069 of 2026 have challenged the order dated 22.01.2026 passed by the learned S.D.J.M, Bhubaneswar in ICC No.1649 of 2020 thereby allowing the petition filed by the Opposite Party (The Best Book Store, Bhubaneswar) for acceptance of the unregistered SPA allowing her attorney to conduct the case on her behalf.
I. FACTUAL MATRIX OF THE CASE:
The brief fact of the case is that the petitioner is a proprietary concern represented through its proprietor who deals with supply of all types of English Medium School Books, Note Books and other study materials to different schools in the State of Odisha and the Opposite Party No.3 being the Principal of Opposite Party No.l & 2 School used to come to the Book shop of the petitioner for the purpose of purchasing books for the Opposite Party No.l & 2 school. In course of regular transaction cordial business relationship was developed and taking advantage of the same the Opposite Party No.3 took books, note books and other study materials for the Opposite Party Nos.l and 2 School from the shop of the petitioner on credit basis on two occasions for an amount of Rs.12,27,135/- and later on paid only Rs.80,000/- to the complainant. Thereafter on the request of the Opposite Party No.3 the petitioner deducted 10% as discount on all the challan-cum-invoice and after deduction Rs.10,24,421.50 paisa was outstanding against the Opposite Parties. Since the Opposite Party No.3 did not pay the aforesaid amount in spite of several request of the petitioner, the petitioner filed a recovery suit vide C.S. No.2040 of 2019 in the court of learned Civil Judge, Senior Division, Bhubaneswar against the Opposite Parties. After getting notice in C.S. No.2040 of 2019, the Opposite Party No.3 approached the petitioner to close the matter and accordingly a cheque amounting to Rs. 10,24,421.50 paisa was issued in favour of the petitioner with the signature of the Opposite Party No.3 in order to clear the liability/debt. But on presentation of the said cheque by the petitioner in his Bank, it was returned by the Bank on dated 16.01.2020 with remark "Account Closed". So, the petitioner after observing all formalities as per law filed a case U/s.l38 of N.I. Act against the Opposite Parties.
On being summoned the Opposite Parties have already entered their appearance. The present petitioner has also filed his evidence affidavit and documents in support of her case. But due to prolong illness and multiple disease, the petitioner executed a special power of attorney in favour of one Shivaji Jayasingh who is the close business associate of the petitioner and direct knowledge with the transaction between the petitioner and opposite party in order to perform all the acts and execute things on behalf of the petitioner in respect of the complaint case.
After execution of deed of special power of attorney in favour of Shivaji Jayasingh, the petitioner filed a petition on dated 19.09.2024 in the learned Trial Court for acceptance of the said Special Power of Attorney and to conduct the case on behalf of the petitioner. The Opposite Party - accused filed her written objection on dated 21.02.2025 to the said petition dated 19.09.2024.
The learned Trial Court after hearing the respective parties to the petition dated 19.09.2024 was pleased to reject the same vide order dated 17.03.2025 on the ground that there is no specific provision under the N.I. Act which shall allow the complainant to prove her evidence affidavit and to exhibit her list of documents through the Power of Attorney Holder and there is also no medical document with regard to the illness of the petitioner.
Challenging the order dated 17.03.2025 passed by the learned S.D.J.M., Bhubaneswar in ICC No. 1649/2020, the petitioner filed CRLMC No.2224/2025 before this Hon’ble Court and vide order dated 17.11.2025 this Hon’ble Court was pleased to disposed of the said CRLMC No.2224 of 2025 with a direction to the petitioner to move fresh application before the learned trial court who shall do well to consider such application by taking into consideration the medical documents to be filed by the petitioner and pass necessary order in accordance with law within a period of four weeks.
In pursuance to the order of this Hon’ble Court passed in CRLMC No.2224 of 2025, the petitioner filed a petition afresh on dated 17.12.2025 with a prayer for acceptance of Special Power of Attorney dated 29.07.2024 and allow her attorney holder Shivaji Jayasingh to conduct the case on behalf of the complainant, including admission of examination-in-chief in the form of affidavit filed by the complainant/petitioner and to exhibit the original documents relied by the complainant/petitioner.
After hearing the counsels for the respective parties the learned trial court vide order dated 22.01.2026 though was pleased to allow the petition filed by the petitioner for acceptance of the Special Power of Attorney dated 29.07.2024 executed in favour of her close business associate Shivaji Jaysingh only to conduct the case and adduce evidence on behalf of the complainant/ petitioner only those potion which are in due knowledge, but he is not allowed to give evidence to those facts or evidence can be deposed by the complainant in her personal capacity and also not allowed to admission of the examination-in-chief in the form of affidavit filed by the complainant.
Hence, the Petitioner is constrained to file this CRLMC seeking quashment of the aforesaid impugned order.
II. SUBMISSIONS OF THE PETITIONER:
Learned counsel for the Petitioner made the following submissions in support of his contentions:
In this case, though the power of attorney holder allowed to conduct this case on behalf of the complainant, but not allowed to admission of the examination in Chief in the form of affidavit filed by the complainant.
That, it is submitted, the complainant has already filed the original documents which was also within the knowledge of the power of attorney holder and in his presence all the documents were signed.
In the case of A.C. Narayan -vrs.- State of Maharastra and another1, the Hon’ble Apex Court in paragraph -26 of the said judgment has observed that:
“keeping in mind various situation like inability as a result of sickness, old age or death or staying abroad of the payee or holder in due course to appear and depose before the court in order to prove the complainant it is permissible for the power of Attorney Holder or for the legal representatives to file complaint and or continue with the pending criminal complaint for and on behalf of the payee or holder in due course. However, it is expected that such power of attorney holder or legal representative should have knowledge about the transaction in question so as to be able to bring on record the truth of the grievance/offence, otherwise, no criminal justice could be achieved in case or Holder in-due course, is unable to sign, appear or depose as complainant due to above quoted reasons”.
In such view of the matter, the Petitioner (The Best Book Store) contended that the prayer made by the Petitioner may be allowed.
III. SUBMISSIONS OF THE OPPOSITE PARTIES:
Learned counsel for the Opposite Parties made the following submissions in support of his contentions:
Pursuance to the order of this Court as above; the Petitioner filed a fresh petition on 17.12.2025 along with supporting medical documents. On 22.01.2026 the learned S.D.J.M, Bhubaneswar vide the impugned order allowed the petition filed by Petitioner to the extent that the SPA holder is allowed to give evidence on behalf of the complainant-Petitioner only those portions which are in his knowledge but not allowed to give evidence to those facts or evidence which can be deposed by the complainant in her personal capacity.
The petition dated 17.12.2025 filed before the learned S.D.J.M. is not maintainable in law, as no provision of law has been invoked therein. There is no mention in the said petition as to under which provision of law the same is being filed by her. Hence without entering into the merit of the prayer involved therein the petition dated 17.12.2025 was liable to be rejected outrightly.
The order passed by the learned S.D.J.M, Bhubaneswar is not sustainable to the extent of allowing the SPA to give evidence on behalf of the Petitioner. Such order is nothing but a review of the order dated 17.03.2025 passed by the same court. Law does not permit the learned S.D.J.M, Bhubaneswar to review its own order without there being jurisdiction to do so.
Learned Magistrate, in the order dated 17.03.2025, clearly held that there was no material showing knowledge of the SPA holder. However, after remand, the same court partly allowed the petition, which amounts to review of its own order, impermissible under Cr.P.C./BNSS.
The alleged Special Power of Attorney dated 29.07.2024is not a registered document and, therefore, lacks legal validity. Further, there is no averment in the complaint petition regarding any special knowledge of the SPA holder about the transactions. Hence, the SPA holder cannot be permitted to prosecute or conduct the case on behalf of the complainant.
A valid notarized document must contain proper registration details, including serial number and date. In the present case, such particulars are absent, rendering the SPA document unreliable. Further, the complaint was filed by the complainant as sole proprietor of M/s Best Book Traders. Therefore, the concept of a “close associate” having knowledge of business transactions is legally untenable.
All transactions were conducted directly by the complainant with the Opposite Parties and that there is no mention in the complaint that the SPA holder was present during such transactions.
It is submitted here that the present Petitioner introduced a new case that the SPA holder had knowledge of the transactions, which is an afterthought and impermissible in law.
The remand by this Court in CRLMC No.2224of 2025 was limited to consideration of medical documents. But, the learned Magistrate exceeded jurisdiction by re-examining other issues.
It is settled law that a Power of Attorney holder can depose only in respect of acts done by him, and not for acts done by the principal. In the present case, all acts were done by the complainant herself. Further, the SPA holder cannot step into the shoes of the complainant to depose, mark exhibits, or face cross-examination on her behalf.
It is contended that judging from all angles and looking into the settled position of law; the order passed by the learned S.D.J.M, Bhubaneswar cannot be sustained and as such the same is liable to be quashed by this Court in exercise of the inherent power under Section 528 BNSS.
IV. COURT’S REASONING AND ANALYSIS:
Heard learned counsel for the parties and perused the material on record. The controversy in these connected matters turns on a narrow but recurring question in cheque-dishonour litigation, the extent to which a complainant who is unable to appear in person, owing to illness, may prosecute a complaint under Section 138 of the Negotiable Instruments Act, 1881 through a power-of-attorney holder, and the limits within which such an attorney-holder may lawfully give evidence. Five points arise for determination; each may be examined herein below.
Firstly, Maintainability of the Application dated 17.12.2025, it is well settled that mere non-mention, or mis-mention, of the specific provision of law under which relief is sought does not render an application non-maintainable, so long as the power to grant the relief prayed for otherwise exists and the substance of the prayer is intelligible. Courts look to the substance of a prayer rather than its label, a defect of form does not defeat a right that the law otherwise recognises. An application seeking permission for an attorney-holder to conduct a complaint and adduce evidence is, in substance, a request for regulation of the Trial Court's own evidentiary procedure under Section 145 of the N.I. Act, read with the Court's inherent power to regulate the conduct of proceedings before it. The absence of a cited provision, makes no ground to non-suit the Petitioner.
Secondly, whether the Order dated 22.01.2026 is an impermissible Review, or Exceeds the Scope of Remand. The bar against a criminal court reviewing its own final order operates only where the court, of its own motion or otherwise, revisits and alters a concluded order without the sanction of a superior court. That is not what occurred here. The order dated 17.03.2025 was, in substance, set at naught by this Court's order dated 17.11.2025 passed in CRLMC No.2224 of 2025, which directed the Trial Court to consider a fresh application supported by medical documents and to pass necessary orders in accordance with law. An order passed by a subordinate court pursuant to, and within the four corners of, a superior court's directions is not a review of its own order; it is compliance with a binding direction, and the embargo against review has no application to such a situation. Nor can the remand be read in the hyper-technical sense urged by the Opposite Parties, as confined solely to verification of medical documents in isolation. The very purpose of directing production of medical documents was to enable the Trial Court to adjudicate the Petitioner's application afresh and in accordance with law — an adjudication that, on settled principles governing power-of-attorney holders in N.I. Act proceedings, necessarily requires the Trial Court to assess whether the attorney-holder possesses the requisite knowledge of the transaction before permitting him any evidentiary role. Reading the remand as excluding this assessment would reduce the exercise to an empty formality and defeat the object with which this Court remanded the matter. The Trial Court's order dated 22.01.2026 is accordingly not vitiated on this ground, and Point No.(ii) is answered against the Opposite Parties.
Thirdly, the validity of the Unregistered Special Power of Attorney.
Compulsory registration under Section 17 of the Registration Act, 1908 is attracted only to instruments that create, declare, assign, limit or extinguish rights in immovable property, or to specific categories of documents enumerated in that provision. A power of attorney executed solely to authorise an agent to prosecute a pending criminal complaint and to depose in evidence on behalf of the executant does not fall within any such category and is not compulsorily registrable in law.
What the law requires of such an instrument, where it is relied upon before a court, is proof of due execution which ordinarily established through notarisation under Section 33 of the Powers of Attorney Act, 1882, read with the evidentiary presumption attaching to registered or authenticated powers of attorney under Section 85 of the Indian Evidence Act, 1872 (now Section 89 of the Bharatiya Sakshya Adhiniyam, 2023). Absence of registration, without more, goes to the weight and mode of proof of the document; it does not render the instrument void or incompetent for the limited litigational purpose for which it was executed. The objection raised by the Opposite Parties on this score is, at best, a matter that the Trial Court would examine while marking the SPA in evidence, and does not furnish a threshold bar to its acceptance.
Fourthly, the extent of the Attorney-Holder's Authority to Depose which is the crux of the matter. The competence of a power-of-attorney holder to prosecute and depose in a complaint under Section 138 of the N.I. Act is governed by a consistent line of authority which are illustratively reflected in A.C. Narayan v. State of Maharashtra2 and MMTC Ltd. v. Medchl Chemicals & Pharma (P) Ltd3 which yields two propositions that must be read together, not in isolation. First, an attorney-holder may indeed file, continue, and depose in a complaint on behalf of a payee who is unable to appear owing to illness, old age, residence abroad, or similar incapacity; the law does not insist on the personal presence of the payee where such incapacity is genuine since to do so would defeat the very object of penal provisions designed to protect commercial credibility. Second, this indulgence is not unconditional as it is expressly conditioned on the attorney holder possessing personal knowledge of the transaction in question. The rationale is not formalistic but functional. It is that knowledge and that knowledge alone, which equips a witness to place the truth of a transaction before the court and to withstand meaningful cross-examination. A witness who merely repeats what he has been told by his principal, without having himself witnessed or participated in the relevant events, offers testimony of a fundamentally different and weaker in evidentiary character, one that risks converting the trial into an exercise the accused cannot effectively test. The law, therefore, draws a line between an attorney-holder deposing to facts of which he has direct knowledge which is permissible and an attorney-holder deposing to facts that lie exclusively within the personal knowledge of the principal, such as her own state of mind, her personal dealings at which the attorney-holder was not present, or the circumstances of execution of a document to which he was not privy which is impermissible.
Applying such distinction, an attorney-holder who was present at, and party to, the execution of the invoices and the cheque in question may properly depose to those facts, since the knowledge he possesses is in his own right. He cannot, however, be permitted to adopt, prove or exhibit the complainant's own examination-in-chief affidavit which involves the complainant's personal testimony in her personal capacity allowing another person to prove it on her behalf, however closely associated he may be, would produce the anomaly of a witness vouching for the truth of statements he cannot make and be cross-examined on matters he cannot answer from his personal knowledge. Such a course would substantially impair the accused's right to effective cross-examination which is at the core of a fair trial in a criminal proceeding, notwithstanding the fact that the proceeding is one instituted on a private complaint.
This reasoning, however, does not leave the Petitioner without recourse. Where a complainant is unable to travel or appear in person owing to illness or infirmity, the appropriate and legally sanctioned course is not to substitute her testimony through an attorney-holder who lacks personal knowledge of it but to enable her to give that testimony herself through alternate means that is by filing affidavit under Section 145 of the N.I. Act, and, where cross-examination is necessary it can be done through video-conferencing, a mode of recording evidence whose legitimacy is well established following State of Maharashtra v. Dr. Praful B. Desai4, (2003) 4 SCC 601 read with the VC Rules of Orissa High Court. Such a course honours both competing interests simultaneously, the Petitioner's right to prosecute a complaint she is medically unable to attend in person and the accused's right to confront and cross-examine the actual maker of the testimony without resort to the legal fiction of treating the attorney-holder as a proxy witness for matters beyond his knowledge.
For these reasons, the distinction drawn between the attorney-holder's permissible and impermissible spheres of testimony is not merely a technical compromise but follows necessarily from first principles governing the reliability of evidence and the fairness of criminal trial. Hence, the petitioner is at liberty to place her own testimony on record through affidavit and video-conferencing or other appropriate mode permissible under law having regard to her medical condition.
Fifthly, the Scope of interference under Section 528, BNSS needs to be examined as the inherent jurisdiction under the aforesaid section exists to prevent abuse of the process of court and to secure the ends of justice, it is not a jurisdiction to be exercised to re-appreciate a correctly reasoned interlocutory order of a Trial Court that has applied settled principles of law in a considered and balanced manner. An order that neither suffers from a jurisdictional error nor occasions a failure of justice does not call for interference merely because a party would have preferred a different outcome.
V. CONCLUSION:
In view of the foregoing analysis, this Court finds no case is made out for interference as the reasoning discussed aforestated applies with equal force to the challenge mounted by the Petitioner in CRLMC No.476 of 2026 and to the cross-challenge mounted by the Opposite Parties in CRLMMC No.1069 of 2026. Both CRLMC No.476 of 2026 (Petitioner's challenge to the curtailment of the attorney-holder's role) and CRLMMC No.1069 of 2026 (Opposite Parties' challenge to the SPA's acceptance at all) fail on their respective grounds and the impugned order stands affirmed, subject to the clarification on how the Petitioner may still personally tender her evidence.
Accordingly, both the CRLMCs are disposed of.
Interim order, if any, passed earlier stands vacated.