Full Judgment Text
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
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:
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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
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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
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Anand is not authorised to depose on behalf of the
company.
6. In support, reliance has been placed upon a decision of
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this Court in A.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;
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(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
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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
st
directors held on 1 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).
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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
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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
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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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