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Judgment
Justice P. Bhavadasan
The accused was prosecuted for the offence punishable u/s 138 of the Negotiable Instruments Act. She was found guilty and was therefore, convicted and sentenced to suffer simple imprisonment for a period of two months and to pay a fine of Rs. 1,20,000/-, in default of payment of which, she shall suffer simple imprisonment for twenty days. In appeal, though the appellate court confirmed the conviction, modified the sentence as simple imprisonment till the rising of the court with a direction to pay a sum of Rs. 1,20,000/-as compensation to the complainant with a default clause of two months'' simple imprisonment.
According to the complainant, the accused had borrowed an amount of Rs. 1,20,000/-from her and in discharge of that liability, the accused had issued to her a cheque for the above said amount, which, on presentation,was returned for want of funds in the account of theaccused. To the statutory notice issued to the accused,there was no response from her. Since the amountremained unpaid, a complaint was filed.
The trial court took cognizance of the offence. On appearance of the accused, the particulars of the offence were read out to her to which, she pleaded not guilty and claimed to be tried. Therefore the prosecution examined PW1 to 3 and had Exts.P1 to P5 marked. After close of the complainant''s evidence, the accused was questioned u/s 313 of Cr.P.C. She denied all incriminating circumstances brought out in evidence against her and maintained that she is innocent. According to her, she had borrowed and amount of Rs. 60,000/-from the complainant and at the time of payment of the said amount, she had given to the complainant a cheque for Rs. 1,20,000/-as security. The accused repaid an amount of Rs. 65,400/-including interest to the complainant. But, the complainant did not return the cheque given as security. According to the accused, the said cheque has been misused by the complainant to file a false case against her. However, she chose to adduce no evidence in support of her defence except to mark Exts.D1 and D2.
The courts below, on an evaluation of the evidence in the case, came to the conclusion that the offence has been established. Accordingly, the accused was found guilty of the offence u/s 138 and therefore, convicted and sentenced her as already mentioned. In appeal, though the conviction was confirmed, the sentence was modified.
The Learned Counsel for the revision petitioner urged only one point for consideration of this Court. The Learned Counsel submitted that the complainant was never examined before the court below and it was his Power of Attorney Holder, who was examined as PW1 before the trial court. According to the Learned Counsel for the revision petitioner, a Power of Attorney Holder can given evidence only in respect of acts done by him in the exercise of powers granted by the instrument, but he cannot depose for the principal in respect of the matter on which the principal alone has personal knowledge. In support of his said contention, the Learned Counsel relied on the decision in Ummer Farooque Vs. Naseema, wherein it is held as follows :
The question still arises as to how far the evidence of the power of attorney can be relied on and can be treated as a substitute for the evidence of the appellant himself. As held by the Supreme Court in M.P.Rural Agr.E.O.Assn v. State of M.P. (2004 (2) KLT 265 (SC), the power of attorney can given evidence only in respect of acts done by him in the exercise of powers granted by the instrument, but he cannot depose for the principal in respect of the matter on which the principal alone can have personal knowledge.
The Learned Counsel also relied on the decision in H.D.F.C. v. Jaleel (2008 (3) KLT 869) wherein it is held as follows :
I may summarise my conclusions as follows:
i) Alert application of mind must be made by a criminal court at the stage of S.203/204 Cr. P.C while taking cognizance and issuing process to satisfy itself that there is "sufficient ground for proceeding" against an accused person.
ii) This must be done by the Magistrate, cognizant of the twin requirements and challenge at the threshold - of giving a bona fide complainant a fuller and more exhaustive opportunity to substantiate his genuine grievance and of showing the door to a vexatious complainant trying to abuse the criminal adjudicatory process against a person who does not deserve to endure the unnecessary trauma.
iii) Ordinarily process can be issued under S.204 Cr. P.C at the end of the enquiry under S.200 - i.e. after recording the sworn statement of the complainant and his witnesses if any present if the requisite satisfaction that there is sufficient ground for proceeding can be entertained by the Magistrate on the materials available.
iv) If at the end of the enquiry under S.200 Cr. P.C the Magistrate is not able to come to a conclusion as to whether there is or there is no sufficient ground to proceed the Magistrate shall proceed to conduct an enquiry under S.202 Cr. P.C. Such enquiry may be conducted by the Magistrate himself or he may direct an investigation to be conducted by a police officer or any other person.
v) The criminal court at that stage must be alertly conscious of the greater trauma that a person who resides outside its jurisdiction will have to endure if process were issued by the court against him.
vi) The Magistrate, in the case of a person residing outside his jurisdiction, must ordinarily come to a conclusion as to whether there is sufficient ground to proceed against such accused only after conducting an enquiry under S.202 Cr. P.C.
vii) Notwithstanding the fact that requirement of (vi) is introduced by a specific amendment substituting the permissive "may" by the command of "shall", the non compliance does not vitiate the cognizance taken and the consequent issue of process as the purpose of such an enquiry under S.200 and 202 Cr. P.C is only to decide whether or not "there is sufficient ground for proceeding".
viii) S.202 Cr. P.C as amended applies to prosecutions under S.138 of the N.I Act also in the light of S.4(2) of the Code and in the absence of any specific contra provision in S.138 of the N.I Act.
ix) But ordinarily in a prosecution under S.138 of the N.I Act, if a proper complaint is filed supported by necessary documents and a proper affidavit is filed under S.145 of the N.I Act it may not be necessary for the Magistrate to proceed to hold the enquiry under S.202 Cr. P.C as the requisite satisfaction can be entertained at the end of the enquiry under S.200 Cr. P.C itself.
x) But in a case where there is possibility of dispute regarding territorial jurisdiction, or dispute regarding complicity alleged with the help of S.141 of the N.I Act, it will be proper, necessary and advisable for the Magistrate to hold enquiry under S.202 Cr. P.C, if requisite satisfaction is not induced by the materials placed before it under clause
(ix) above.
xi) Even in such enquiry under S.202 Cr. P.C in a prosecution under S.138 of the N.I Act, it is not invariably necessary to examine a complainant and his witnesses personally on oath. They can be directed to file affidavit or additional affidavit u/S.145 of the N.l. Act on the specific aspects where materials are found necessary or the Court entertains doubts. S.145 of the N.I Act as explained in the decision in Vasudevan Vs. State of Kerala, shall apply to the stage of enquiry under S.202 Cr. P.C also. Courts must be specifically cognisant of the need for expedition in a prosecution under S.138 of the N.I. Act.
xii) In a case where the requisite satisfaction under S.204 Cr. P.C. can be entertained convincingly by the materials available on record, the non compliance with S.202 Cr. P.C does not ipso facto vitiate the cognizance taken or the process issued. S.202 does not contemplate or mandate a ritualistic enquiry merely to satisfy the letter of the procedural/adjectival law even after the requisite satisfaction under
S.203/204 Cr. P.C is convincingly entertained by the Court. In this sense the requirement introduced by amendment is only directory and not mandatory, though all courts are certainly expected to follow that stipulation.
Reliance was also placed on the decision in Krishna Janardhan Bhat v. Dattatraya Hegde (2008 (1) KLT 425), wherein it was held that while considering the question of rebuttal of presumption, in cases where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties are required to be considered. Reliance was also placed on the decision in Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and Others, wherein it was held as follows :
On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan, 1986 (2) WLL 713 it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
The aforesaid judgment was quoted with the approval in the case of Ram Prasad Vs. Hari Narain and Others, . It was held that the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a Commissioner for recording his evidence may be issued under the relevant provisions of the CPC.
The Learned Counsel for the petitioner pointed out that in view of the principle laid down in the above decisions, the complainant''s evidence could not have been substituted by the power of attorney holder by giving evidence as if it was the evidence of the complainant himself. These vital aspects have been overlooked by the courts below which has resulted in miscarriage of justice.
The Learned Counsel for the respondents, on the other hand, relied on the decision in Ashalatha v. State of Kerala (2007 (3) KLT 984) and contended that the power of attorney holder is competent to give evidence in respect of matters of his personal knowledge and if that is sufficient to come to a conclusion that the complainant''s case is true, Crl.RP 2425/2011 10 conviction can follow.
It is true that in the case on hand, the complaint is filed by the complainant and not by the power of attorney holder. Power of attorney holder gave evidence on behalf of the complainant. In fact, he says that money was handed over to the accused in his presence and he speaks about the money collected to be handed over to the accused. It is true that in the decisions relied on by the Learned Counsel for the revision petitioner, it has been held that a power of attorney cannot substitute the position of the complainant and he cannot give evidence in respect of matters within the personal knowledge of the complainant alone. There can be no doubt or quarrel about the said proposition. But, as held in the decision in Ashalatha v. State of Kerala (supra), a power of attorney holder can certainly give evidence in respect of matters within his personal knowledge and if that is sufficient to come to the conclusion that the offence has been made out, even if the complainant is not examined, it can be treated as the evidence in favour of the complainant himself. Moreover, in the complaint, the competency of the power of attorney holder about his knowledge about the transaction was not specifically put in issue. of course, in the case on hand, PW1 feigns ignorance about certain aspects.
Relying on the decisions quoted above, the Learned Counsel for the revision petitioner pointed out that the power of attorney has no personal knowledge about the transaction as would be evident from the materials produced in the case.
PW1 has spoken about the transaction and also that money was handed over to the accused in his presence. He has spoken as to how the amount was collected to be given to the accused. Even in the absence of any evidence by the complainant, the court below found his evidence to be sufficient enough to come to the conclusion that the transaction as stated by the power of attorney holder has taken place. Further both the courts below have found that the evidence adduced by the accused is insufficient to prove his plea of discharge. She has stated that she had borrowed only a sum of Rs. 60,000/-from the complainant and had issued the cheque at that point of time. She relied on Ext.D2 notice in support of the said contention. The courts below have noticed that in one portion of Ext.D2, the amount mentioned is Rs. 60,000/-while in another portion, an amount of Rs. 1,20,000/-is seen mentioned. It is significant to notice that the courts below had occasion to notice that the claim of the accused that she had borrowed only Rs. 60,000/-is incorrect.
As stated by the Learned Counsel, it is not necessary that in all cases, the accused should step into the box and speak about the discrepancies. He can certainly rely on the prosecution evidence. Preponderance of probability is sufficient to rebut the presumptions available to the complainant. Both the courts below have found that there is nothing to show that the transaction spoken to by PW1 is untrue or that his claim on the basis of his personal knowledge is false. Moreover, the accused had not offered any reply to the statutory notice issued to him and his plea of discharge also remains unsubstantiated. In the decisions cited by the Learned Counsel for the revision petitioner what has been stated is only that the power of attorney holder cannot depose about matters within the personal knowledge of the complainant but the power of attorney holder can certainly depose about matters within his personal knowledge. That is what has been done by PW1. He has deposed about a matter of which he has complete knowledge. So, the decisions relied on by the Learned Counsel for the revision petitioner cannot come to the aid of the revision petitioner.
The courts below have considered the evidence in considerable detail and have come to the conclusion that the accused is unable to establish the case against the complainant. The findings of the courts below are based on appreciation of evidence and there is nothing to show that the findings are either perverse or unwarranted by the evidence on record, warranting interference under the revisional jurisdiction. Finally, the Learned Counsel for the revision petitioner prayed for some time to pay the compensation amount.
It is submitted that as per the interim order passed by this Court on 18.10.2011, the petitioner has deposited an amount of Rs. 50,000/-. While confirming the conviction and sentence imposed by the lower appellate court, the revision petitioner is granted two months'' time to deposit the balance amount of compensation, failing which the default clause as imposed by the lower appellate court will take effect.