Mita India Pvt. Ltd. vs Mahendra Jain

CRIMINAL APPEAL NO. OF 2023 [Arising out of Special Leave Petition (Crl.) No.6220 OF 2019]

MITA INDIA PVT. LTD. ….. APPELLANT

versus

MAHENDRA JAIN …..RESPONDENT

J U D G M E N T

PANKAJ MITHAL, J.

1. Heard Mr. B.B. Sawhney, learned Senior counsel

appearing for the appellant and Mr. Nitin S. Tambwekar,

learned counsel appearing for the respondent and

perused the pleadings exchanged between the parties. Signature Not Verified Digitally signed by POOJA SHARMA Date: 2023.02.20 17:35:07 IST Reason: 1

2. Under challenge is the judgment and order dated

04.04.2019 passed by the learned Single Judge of the

High Court in exercise of powers under Section 482 Cr.PC

setting aside the orders of the trial court dated

30.01.2018 and 23.07.2018 and that of the Revisional

Court dated 26.09.2018.

3. The appellant-company, M/s.Mita India Pvt. Ltd.

awarded a contract to the respondent – Mahendra Jain

for shifting of 33 K.V. electrical overhead line at its plant

at Dewas. In connection with the said contract, the

appellant-company by mistake made excess payment.

The respondent agreed to refund the excess amount and

issued two cheques to the appellant-company for its

refund. The cheques were dishonoured on account of

instructions “stop payment”.

4. The appellant-company through its authorised

representative Ripanjit Singh Kohli filed a complaint in

the Court of Chief Judicial Magistrate, Dewas under

Section 138 read with Section 141/142 of the Negotiable

2 Instruments Act, 1881. In the said complaint, respondent

moved two applications – first alleging that the complaint

has not been filed by an authorised person and the

second alleging that Kavindersingh Anand cannot depose

before the court as the complaint nowhere states that he

is having knowledge about the facts and the transactions.

5. The first application was rejected by the trial court vide

order dated 30.01.2018. The second application was

rejected on 23.07.2018 whereupon a criminal revision

was filed which was dismissed vide order dated

26.09.2018. These three orders were assailed by the

respondent by invoking jurisdiction under Section 482

Cr.P.C. The High Court by the impugned order has

allowed the petition filed under Section 482 Cr.P.C. and

has ordered for setting aside the above orders on the

ground that the complaint was not filed by the person

authorised as Kavindersingh Anand, who was given the

power of attorney, had no authority of law to sub-delegate

the said power to the authorised representative Ripanjit

Singh Kohli. Secondly, on the ground that Kavindersingh

3 Anand is not authorised to depose on behalf of the

company.

6. In support, reliance has been placed upon a decision of

this Court in 1A.C. Narayanan v. State of Maharashtra

and Another.

7. The Apex Court through the above decision has laid down

the following principles: -

i) Filing of a complaint under Section 138 Negotiable

Instruments Act, 1881 through power of attorney

holder is perfectly legal provided he has due

knowledge about the transaction (s) in question;

ii) Power of attorney holder can depose and verify on

oath to prove the contents of the complaint if he has

witnessed the transaction;

iii) The complaint filed through power of attorney holder

must contain an assertion/ that he had the

knowledge about transactions in question;

1 (2014) 11 SCC 790

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iv) Functions under general power of attorney cannot

be delegated to another person without a specific

clause permitting the same in the general power of

attorney.

v) The affidavits of complainant, his witnesses or his

power of attorney holder are permissible and

sufficient for taking cognizance on the complaint;

and

vi) The complaint by power of attorney holder on behalf

of the original complainant is maintainable though

he cannot file a complaint in his own name.

8. It is in the light of the above dictums of law laid down by

this Court in the above case, it is to be examined if the

complaint as filed is maintainable and the High Court is

justified in exercise of its power under Section 482 Cr.PC

to set aside the orders of the trial court and that of the

Revisional Court holding that the complaint is

maintainable as it has been filed by the authorised

representative/power of attorney holder and that the said

5 power of attorney holder is legally entitled to depose in

support of the complaint.

9. A bare perusal of the complaint filed by the appellant-

company reveals that it has been filed in the name of the

company through its authorised representative, Ripanjit

Singh Kohli. Therefore, the complaint is by the appellant

company in its own name. It has not been filed in the

name of the power of attorney holder. The complainant,

that is the appellant company is entitled to file the

complaint in its own name through its power of attorney

holder.

10. There is a general power of attorney of the appellant

company in favour of one of its directors, Kavindersingh

Anand. The said power of attorney was executed after it

was duly approved by the board of directors in its meeting

dated 01.05.2010. Therefore, one of the directors of the

appellant-company, i.e. Kavindersingh Anand is holding

power of attorney of the appellant-company and is the

true and lawful attorney of the same.

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11. The said power of attorney explicitly authorises him to

appoint “counsel” or “special attorneys” for conducting all

cases or otherwise to do all other acts and things for due

prosecution or defence of legal or quasi legal proceedings

anywhere in the world.

12. The aforesaid power of attorney Kavindersingh Anand, on

the strength of the aforesaid power of attorney,

authorised Ripanjit Singh Kohli to lodge the aforesaid

complaint.

13. The law is settled that though the general power of

attorney holder cannot delegate his powers to another

person but the same can be delegated when there is a

specific clause permitting sub-delegation. A careful

reading of the general power of attorney would reveal that

the appellant-company in its meeting of the board of

directors held on 1st May, 2010 has resolved to appoint

one of its directors Kavindersingh Anand as its attorney

of the company who was specifically authorised vide

paragraph 2 to appoint counsels or special attorney(s).

7 The language deployed, i.e., to appoint special attorneys

is clear enough to indicate that the power of attorney

holder has been authorised to appoint special attorneys

in addition to the counsel for conducting cases and for

doing other relevant and material acts in that connection.

The use of the words “to appoint counsels or special

attorneys” would not mean that he was authorised only

to appoint counsel or special counsel for the purpose.

The use of the word ‘counsel’ and ‘special attorney’ have

different connotations. The use of the aforesaid words to

appoint counsels or special attorneys in paragraph 2 of

the power of attorney is quite distinct and refers to not

only to appointment of counsel but of special attorneys

other than the counsel. This is implicit upon the reading

of paragraph 16 of the power of attorney which

specifically deals with the appointment of solicitors,

counsels, advocates, other consultants or professionals,

but does not refer to attorneys. Therefore, a combined

reading of paragraph 2 and paragraph 16 of the power of

attorney would bring home the fact that the power of

8 attorney holder was authorised to appoint special

attorney other than the counsel for the purposes for

conducting and prosecution of cases on behalf of the

appellant-company. This apart, the power of attorney

holder was appointed under the resolution of the board

of directors of the appellant company and the draft of the

power of attorney was duly approved by the board. The

said power of attorney as discussed above do provide for

the sub-delegation of the functions of the general power

of attorney holder and thus the filing of the complaint on

behalf of the appellant company through its authorised

representative Ripanjit Singh Kohli is not at all illegal or

bad in law.

14. Now coming to the second aspect of the matter as to

whether Kavindersingh Anand could depose on behalf of

the appellant company, it has to be noted that he was one

of the directors of the company who has been specifically

authorised to lodge the complaint and to pursue it. It has

come on record that he has filed his personal affidavit

dated 26.03.2018 stating that he is general power of

9 attorney holder of the appellant company and that since

he is also a director, he is fully conversant with the facts

of the case and hence is competent to pursue the

litigation on behalf of the appellant company. The High

Court has very conveniently ignored the said affidavit and

for the reason that as such an averment is not contained

in the complaint, held that he was not authorised to

depose on behalf of the appellant company.

15. We are of the considered opinion that the High Court

manifestly erred in recording the above opinion when the

affidavit of the power of attorney holder was on record

containing that he has personal knowledge of the

transactions.

16. In view of the above, as the power of attorney holder is

said to be having due knowledge about the transactions,

he has the capacity to depose and the trial court or the

Revisional Court committed no error of law in rejecting

the applications of the respondent.

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17. Accordingly, we are of the opinion that that the High

Court erred in interfering with the orders of the trial court

in passing the impugned order dated 04.04.2019.

Accordingly, the aforesaid order dated 04.04.2019 is

hereby set aside and the those of the trial court and the

revisional court are restored.

18. The appeal is allowed.

19. All the pending applications, if any, stand disposed of.

..………………………….. J.

[V. Ramasubramanian]

……………………………..J. [Pankaj Mithal] New Delhi;

February 20, 2023.

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