V.R. Kingaonkar, J.
1. This is an application filed by the original accused. They challenge legality and correctness of orders passed by learned Judicial Magistrate, First Class, Aurangabad and learned IVth Additional Sessions Judge, Aurangabad in SCC 2888/2001 and Criminal Revision Petition No. 76/2003. They seek quashing of the orders of issuing process and denying discharge from the Criminal Case.
2. The applicants allege that the proceedings of Criminal Case (SCC No. 2888/2001) are liable to be quashed inasmuch as the same amounts to abuse of process of law.
3. Background facts may be summarised as follows:
The Respondent No. 1 Sk. Tamisuddin claims himself to be Special Power of Attorney of deceased Sairabi. He alleges that on 20.6.2001 the applicants issued a cheque for amount of Rs. 1,00,000/-(Rupees one lac) towards part payment of agreed amount payable to Sairabi for her share in an immovable property. The cheque was presented for encashment in the concerned Bank. However, it was dishonoured. A demand notice was issued by the Respondent No. l which drew blank. He, therefore, lodged the complaint before the learned Judicial Magistrate, First Class, Aurangabad, on 8.8.2001. The learned Magistrate issued process on 18.8.2001 on the basis of verified statement of the Respondent No. 1 – Sk. Tamisuddin.
4. The applicants filed an application (Exh. 41) to acquit them Under Section 256 of the Cr.P.C. for the reason that in the month of June 2002, aggrieved person, namely, Sairabi demised. Thereupon, the Respondent No. 1 filed an application (Exh. 43) seeking permission to grant leave to continue the complaint proceedings in his capacity as legal representative of the deceased Sairabi i.e. original complainant.
5. The applicants filed yet another application for recalling the process on the ground that the complaint filed by the Respondent No. 1 for and on behalf of said Sairabi was untenable. They asserted that the Respondent No. 1 had no locus-standi to file such complaint nor process could be issued on the basis of his verified statement. They asserted that the complaint filed on behalf of the deceased Sairabi ought to have been signed by herself and she ought to have verified correctness of the contents. Therefore, they urged to dismiss the complaint.
6. By a common order dated 12.3.2003 the learned Magistrate rejected both the applications filed by the applicants. The applicants preferred a Revision Petition (Cr. Rev. No. 76/2003) which came to be dismissed.
7. Mr. Jondhale, learned advocate for the applicants, would submit that the complaint for offence Under Section 138 of the N.I. Act could not be filed by the Respondent No. 1 in the name of deceased Sairabi. He argued that verification of the complaint by the Respondent No. 1 is totally illegal inasmuch as the Respondent No. 1 is not the holder of cheque in due course. He argued that the Respondent No. 1 had no legal authority to file the complaint under his own signature. It is argued that issuance of the process without recording verified statement of original complainant – Sairabi is illegal and liable to be set aside. It is contended that the Power of Attorney holder cannot substitute himself as a complainant. It is argued that the impugned orders deserve to be set aside inasmuch as the complaint proceedings are totally illegal. Per contra, Mr. P.R. Patil, learned advocate for the Respondent No. 1 and learned A.P.P. support the impugned orders.
8. A perusal of the complaint reveals that the complaint was filed in name of deceased Smt. Sairabi whose age was shown as 72 years at that time, and it was presented through Special Power of Attorney, namely, Sk. Tamisuddin. The complaint purports to show that Sk. Tamiusddin is well conversant with the facts of the complaint. He claimed to be authorised person to file the complaint by virtue of the Special Power of Attorney executed by said Smt. Sairabi. The complaint reveals that Smt. Saira had interest in a property which the applicants agreed to develop. The appellants allegedly entered into a Memorandum of Understanding (MOU) with her four sons. The allegations in the complaint further disclose that a notice of demand was issued by the deceased Smt. Saira to pay her the due share. The applicants had agreed to pay Rs. 3,00,000/-(Rupees three lacs). The cheque in question was issued as a part payment for discharging the liability which they accepted, she being lawful co-sharer of the property left by her husband, likewise her sons. The cheque issued on 20.5.2001 was dishonoured when presented to S.B.I. at Kranti Chowk branch, Aurangabad. The demand notice issued by the deceased drew blank and, therefore, the complaint was filed.
9. Another significant fact which can be noticed on perusal of the complaint is that the complaint is signed by the special power of attorney -Sk.Tamisuddin as a complainant. The complaint is not signed by deceased Smt. Saira. The complaint is verified by Sk. Tamisuddin as if he is the original complainant. The verified statement which purportedly is of complainant Smt. Saira is signed by Sk. Tamisuddin in her stead, being special power of attorney. Obvously, the complaint is not signed and verified by deceased Smt. Saira. The learned Magistrate issued process on the basis of such a verified statement of the special power of attorney. No attempt was made to call upon deceased Smt. Saira to sign the complaint. The Vakilpatra was also filed by Sk. Tamisuddin as special power of attorney of complainant Smt. Saira.
10. In the above backdrop, definition of the word “complaint” as enumerated in Section 2(d) of the Cr.P.C. may be noticed. The word “complaint” means a written or oral accusation made to Judicial Magistrate to start appropriate proceedings against a known or unknown person as per provisions of the Code. It does not include report given to Police (F.I.R.). So, the complaint may be oral. The purpose of complaint is to move the Judicial Magistrate for setting Criminal Law in motion. However, Section 142 of the Negotiable Instruments Act specifically deals with the expression “complaint” filed under the N.I. Act. A plain reading of Section 142 of the N.I. Act shows that the cognizance of any offence punishable Under Section 138 of the N.I. Act cannot be taken unless there is complaint, in writing made by the payee or by holder of the cheque in due course. Section 142 commences with non-obstante clause. Therefore, it supersedes the general definition of the word “complaint” as given in Section 2(d) of the Code of Criminal Procedure. The legal requirements of a valid complaint for the purpose of N.I. Act are:
(i) There has to be a complaint in writing regarding commission of offence;
(ii) The complaint must be made by the payee or one who is holder of the cheque in due course;
(iii) The allegations in the complaint shall make out a prima facie case of cognizable offence.
11. At this juncture, it may be said that verification of the complaint Under Section 200 of the Cr.P.C. is necessary. The purpose of such verification is to determine prima facie truth into the allegations made in the complaint. The verification of complaint is essential Under Section 200 of the Cr.P.C. before taking cognizance of the offence not only with a view to find out prima facie truth but also in order to identify the person who, in case the prosecution is found to be frivolous or malafide, would be liable to answer the charge of perjury or to indemnify the accused persons. In other words, when the complainant gives statement before the Judicial Magistrate, in support of his complaint, it is implicit that if certain statements are found to be false then identity of perjurer is explicitly made clear. So also if the complaint is found to be malicious and frivolous then action for recovery of compensation can be taken against such a complainant. In this context, observations of the Apex Court in “Sabitha Ramamurthy and Anr. v. R.B.S. Channabasavaradhya 2006 AIR SCW 4582 may be usefully quoted as follows:
By reason of the said provision a person although is not personally liable for commission of such an offence would be vicariously liable therefor. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company. Before a person can be made vicariously liable, strict compliance of the statutory requirements would be insisted. Not only the averments made in paragraph 7 of the complaint petitions does not meet the said statutory requirements, the sworn statement of the witness made by the son of Respondent herein, does not contain any statement that Appellants were in charge of the business of the company. In a case where the court is required to issue summons which would put the accused to some sort of harassment, the court should insist strict compliance of the statutory requirements. In terms of Section 200 of the Code of Criminal Procedure, the complainant is bound to make statements on oath as to how the offence has been committed and how the accused persons are responsible therefor.
In the event, ultimately, the prosecution is found to be frivolous or otherwise malafide, the court may direct registration of case against the complainant for malafide prosecution of the accused. The accused would also be entitled to file a suit for damages. The relevant provisions of the Code of Criminal Procedure are required to be construed from the aforementioned point of view.
The statutory provision requires, therefore, that the complaint must be signed by the complainant and that it shall be verified by the complainant. In the other words, a complaint which is not signed by the complainant, is, therefore, incomplete and on the basis of such incomplete complaint, no cognizance can be taken Under Section 142 of the N.I. Act. As stated before, verification of the complainant is essential in order to ensure that in future nobody may be allowed to deny liability arising out of frivolous complaint, false charges, malicious prosecution or like unfounded criminal action. Corollary of the foregoing discussion is that for the purpose of a valid complaint the test is to examine whether identity of the person, who would be liable to pay compensation to the accused persons, may be Under Section 357 of the Cr.P.C. or may be under the tortious liability, is clearly set out in the complaint. Looked from this angle, the complaint filed by the special power of attorney does not show that he accepted any liability for such adverse effects on the complaint being found frivolous or vexatious. The recitals of the copy of special power of attorney filed alongwith the complaint also do not show that Sk. Tamisuddin agreed to indemnify the accused persons in case any compensation was found payable under provisions of the Law. It is difficult to say, therefore, that the complaint which is not signed by deceased Smt. Saira could be regarded as a complaint within the meaning of the provisions of the N.I. Act. It was incomplete complaint. The defect cannot be cured because Smt. Saira died, during the intervening period, on 28.6.2002. By his application Exh.43 the special power of attorney holder sought leave of the Court to prosecute the complaint on her behalf. The leave was granted to him as per order dated 12.3.2003.
12. In “Finolex Industries Ltd., v. Mr. Pravin V. Sheth and Ors.” 2002 (2) ALL MR 644, a Single Bench of this Court held that for the purpose of Section 142 of the N.I. Act, the complaint must be signed by the complainant. It is held that the complaint which is not signed by the complainant, is, therefore, incomplete and on basis of incomplete complaint, no cognizance can be taken Under Section 142 of the N.I. Act. The learned Sessions Judge placed heavy reliance on “Dr. Pradeep Mohanbay v. Mr. Minguel Carlos Dias” . In the given case a Single Bench of this Court held that a power of attorney has right to file complaint Under Section 138 of the N.I. Act but cannot depose on behalf of the complainant. He can appear as a witness. The learned Sessions Judge quoted a part of the observations of the Single Bench in support of his conclusion that filing of the complaint by a power of attorney is prima facie legal and proper. However, the quotation as stated in paragraph 14 of the impugned order is just reproduction of the headnotes/placitums. Not only that but even in respect of other quotations, the learned Sessions Judge merely reproduced the headnotes/placitums. The learned Judicial Magistrate also did not discuss the case law with reference to the ratio of the decisions.
13. This Court has noticed, of late, the practice adopted by many Judicial Officers to simply refer the decision of this Court or the Apex Court without examining whether the ratio is really applicable to the given case. So also, many Judicial Officers follow practice of reproducing the headnotes/placitum from the reported precedents. The Judicial Officers need to understand that the headnotes are drawn by editors/staff members of the Law Journals. It is necessary to read the precedent in entirety. The Judicial Officer is required thereafter to cull out the ratio of the authority. The matching of facts and circumstances would then enable the Court to examine whether such ratio is applicable to the case with which the Court is required to deal with. Unfortunately, both the Courts below have failed to undertake such exercise before making references to the authorities cited before them. How I wish, the Judicial Officers shall avoid such practice. They shall not merely quote the headnotes/placitum appearing from the indexes or the prelude to the judgments reported in the Law Journal.
14. Reverting to the case of “Dr. Pradeep Mohanbay v. Mr. Minguel Carlos Dias” (supra) it may be mentioned that a specific question was raised by the Single Bench as to whether the power of attorney can depose on behalf of the complainant. The learned Single Judge held that the power of attorney holder can appear, plead and act on behalf of a party but he cannot become a witness of the party. He can only appear in his own capacity. The principle enunciated Under Order 3 Rule 2 of the C.P.C. is equally applicable to appearance of a power of attorney in criminal proceedings. True, in case of “Dr. Pradeep Mohanbay v. Mr. Minguel Carlos Dias“, the learned Single Judge held that a complaint for offence Under Section 138 of the N.I. Act can be filed by the power of attorney in terms of Section 142 of the said Act. Filing of complaint by the power of attorney holder is quite different from signing of the complaint and due verification thereof. A power of attorney holder can file a complaint for and on behalf of the person who has delegated the power to him for presentation of the complaint. However, he cannot depose instead of such a complainant on whose behalf he files the complaint. The learned Single Judge (R.K. Batta, J.) in the given case clearly observed:
The complainant can appoint a Power of Attorney for filing the complaint in view of Section 142 of the said Act. However, neither Code of Criminal Procedure nor the said Act contemplates that any one can depose for and on behalf of the complainant. In such complaint the Power of Attorney is entitled to appear as a witness and depose in respect of facts which are within his knowledge and on the basis of record on which reliance is placed.
15. There is no difficulty in accepting the proposition that a Power of Attorney may enter witness box in his own capacity so as to spell out the facts known to him. In no case, however, he can substitute himself in place of the complainant right from the stage of verification of the complaint till end of the trial. In other words, the original complainant cannot be a mere name lender when the complaint is filed for the offence under the N.I. Act. This is more so having regard to the purpose of the verification Under Section 200 of the Cr.P.C. being one to fix identity of the person who may be made liable to pay compensation when the complaint is found to be false, frivolous or vexatious.
16. Mr. P.R. Patil, learned Counsel for the Respondent, seeks to rely on “G.J. Packaging Private Ltd. and Anr. v. S.S. Sales and Anr.” 2006 (2) Bankers Journal 244. The question before the learned Single Judge (S.P. Kukday, J.) in the said case was whether a complaint filed for offence punishable Under Section 138 of the N.I. Act, 1881, could be quashed Under Section 482 of the Cr.P.C. on the ground that it was defective because it was filed by the power of attorney in the name of the payee or holder in due course. The learned Single Judge held that even if the complaint is signed by a person, who is not properly authorised, this defect can be subsequently rectified. The complaint cannot be quashed merely on this ground. The learned Single Judge observed, during the course of discussion, that “where a power of attorney has full knowledge of the transaction, his statement can be recorded by the Magistrate for verification of the complaint for ascertaining the truth of the allegations and to enable him to take appropriate decision that the process should be issued or not.” These observations are merely obiters. The issue involved was whether or not the order regarding the issuance of process by the learned Chief Judicial Magistrate called for interference on the ground that the complaint was filed by unauthorised person. The learned Single Judge observed:
This Court in Mamtadevi Prafullakumar Bhansali (supra) after noticing relevant provisions came to the conclusion that in cases where Power of Attorney holder can depose on behalf of the principal if he transacts business from the beginning to the exclusion of the principal, as his capacity as a witness and as Power of Attorney merges in such a case.
In the fact situation of the present case, there is hardly any material to infer that Respondent Sk. Tamisuddin transacted the business from beginning and that too to the exclusion of deceased Smt. Saira. There is nothing in the statement of Sk. Tamisuddin to show that Smt. Saira had no knowledge about the transaction which entailed issuance of the cheque for Rs. 1,00,000/-nor the complaint is signed by said Smt. Saira. In “Jimmy Jahangir Madan v. Mrs. Boly Cariayappa Hindley (Deceased) by L.Rs.” A.I.R. 2004 Supreme Court 48, the Apex Court held that Power of Attorney holder cannot file an application Under Section 302 of the Cr.P.C. on behalf of the heirs of the complainant and unless permission is obtained from the Court he cannot be treated as a pleader. The delegated powers may be availed by the Special Power of Attorney only to the extent of filing of the complaint and pursuing the same by making appropriate applications during the trial.
17. A Division Bench of this Court in “Maharaja Developers and Anr. v. Udaysingh Pratapsinghrao Bhonsle and Anr.” 2007 Cri.L.J. 2207, held that it is mandatory for the Magistrate to examine the complainant Under Section 200 of the Cr.P.C. The Division Bench held that non-obstante clause in Section 142 of the N.I. Act does not relieve the Magistrate of his duty to examine the complainant and his witnesses on oath Under Section 200 of the Cr.P.C. In “Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors.” , the Apex Court crystalised scope of Order 3 Rule l and 2 of the C.P.C. It is held that power of attorney holder cannot depose in place and instead of the principal. A Single Bench of this Court (J.H. Bhatia, J.) in “Sanjay Vinze and Ors. v. State of Maharashtra and Ors.” 2007 ALL MR (Cri.) 3170, held that order to issue process on the basis of verification statement by son of the complainant, in regard to the facts which were only within exclusive knowledge of the complainant, was improper and illegal. The order issuing process was therefore, quashed. The relevant observations may be reproduced for ready reference:
Merely because he was constituted power of attorney holder, he could not claim to be the complainant himself or witness of the facts which were not known to him but which were within the exclusive knowledge of the complainant. In view of this, it must be held that verification statement of the respondent No. 3 was not verification statement made by the complainant or by witness who had personal knowledge of the fact.
Therefore, on the basis of such statement, the learned Magistrate could not proceed to issue process under Section 204 of the Cr.P.C.
In “S.P. Sampathy v. Manju Gupta” 2002 (4) ALL MR (Journal) 6, a Division Bench of Andhra Pradesh High Court held that complaint ought to be made and signed by the payee or holder in due course. The power of attorney holder, it is held, cannot file complaint. In “Anil G. Shah v. J. Chittranjan Co. and Anr.” 1998 (2) Crimes 347, a Single Judge of Gujarat High Court held that cognizance taken on complaint filed by payee or through power of attorney holder does not suffer from illegality. It is further held that death of the payee of the cheque has no bearing on the trial. The legal heirs of the original complainant are entitled to come forward and ask for their substitution in place of the complainant so as to proceed further with the trial.
18. There are cases and cases. Each case needs to be examined on the basis of the fact situation obtained therein. In the case in hand, the complaint filed by Respondent – Sk. Tamisuddin was defective because it was not signed by the complainant Smt. Saira. The defect was curable during her life time. She could have been asked to sign the complaint. That was not done. The complaint is verified by the Respondent although, he did not state in clear words that he is not only Special Power of Attorney holder but has the full knowledge of the facts in which the cheque was issued by the applicants in name of Smt. Saira, as a result of liability to discharge the legal debt or money due to her. It appears that gist of the complaint is reproduced as the verified statements of Sk. Tamisuddin. The copy of Special Power of Attorney does not show that the Respondent did undertake the liability to indemnify the accused persons if the complaint was found to be frivolous or false. The issuance of process on the basis of such a verified statement is, therefore, illegal and improper.
19. The matter does not stop here. After the death of Smt. Saira, the Respondent obtained permission to continue the prosecution as her Special Power of Attorney. He did not seek his substitution as a legal heir of the deceased. Secondly, when the initial complaint itself was defective and process could not be issued thereunder, there arise no question of substitution of the complainant Under Section 256 of the Cr.P.C. In this view of the matter, I am of the opinion that both the impugned orders are improper and illegal. Needless to say, the prosecution against the applicants would tantamount to abuse of the process of law.
20. The Chapter relating to penalties in case of dishonour of cheques was introduced by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988. The Chapter XVII comprising of Section 138 to 142 came on the statute book with a view to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques. The civil liability is partly transformed into criminal liability. The offence Under Section 138 of the N.I. Act is, therefore, a hybrid product of Civil and Criminal Laws. The special enactment requires certain conditions to be satisfied before taking cognizance of the offence. Hence, the provision of Section 142 will have precedence over the normal procedure of entertaining a complaint. The Respondent cannot be termed as the payee of the cheque in question nor can he be regarded as holder thereof in due course. Hence, his complaint would not be maintainable.
21. For the reasons aforesaid, the application is allowed. The impugned orders are quashed and the complaint filed by the Respondent shall be deemed as dismissed as the order to issue process thereon is unsustainable. No costs.