Dismissed

M/s. Matuthi Travels , v. The State of Andhra Pradesh

Telangana HC22 Aug 2014CRLP/8056/2010

Case brief

AI extract

What is this about?

The court dismissed a petition under Section 482 Cr.P.C. seeking quashing of proceedings under Section 138 NI Act. Relying on A.C. Narayanan, the court held that a GPA holder can validly file a complaint via affidavit, and the Magistrate is not mandatorily obliged to examine the complainant in person.

What did the court decide?

Criminal petition dismissed; miscellaneous petitions, if any pending, stood closed.

M/s. Matuthi Travels , Vs The State of Andhra Pradesh — Money Laundering | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY CRIMINAL PETITION No.8056 of 2010

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ORDER:

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This petition is filed under Section 482 Cr.P.C. to quash the proceedings against the petitioners/A1 and A2 in C.C. No.122 of 2009 on the file of XX Additional Chief Metropolitan Magistrate, Hyderabad.

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The facts leading to filing of the present petition are briefly as follows: The second respondent filed a private complaint against the petitioners on the file of IX Additional Chief Metropolitan Magistrate, Hyderabad for the offence under Section 138 of Negotiable Instruments Act. As per the allegations made in the complaint, the petitioners have issued a cheque bearing No.739772, dated 15.11.2008, for an amount of Rs.4,00,694/- in favour of the second respondent, drawn on City Union Bank, Secunderabad. When the second respondent presented the cheque for collection, the same was returned with an endorsement “EXCEEDS ARRANGEMENT” on 21.1.2009. The second respondent got issued statutory notice on 18.2.2009 calling upon the petitioners to pay the amount covered under the cheque within 15 days from the date of receipt of the notice. For one reason or the other, the petitioners did not choose to pay the amount or even to issue any reply. Having no other alternatively, the second respondent filed the private complaint.

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Learned IX Additional Chief Metropolitan Magistrate, Hyderabad, after following due procedure, as contemplated under Criminal Procedure Code and the Negotiable Instruments Act, has

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taken cognizance of offence against the petitioners under Section 138 of the Negotiable Instruments Act.

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The contention of learned counsel for the petitioners is two fold: (1) the GPA Holder has no right whatsoever to file the complaint, and (2) the learned IX Additional Chief Metropolitan Magistrate ought not to have taken cognizance of offence without examining the complainant in person. Learned counsel for the second respondent submitted that the contentions raised by the petitioners are not legally sustainable.

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It is not in dispute that the complaint is filed by the G.P.A. Holder on behalf of M/s.Shriram City Union Finance Limited (complainant/second respondent).

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A perusal of the record reveals that the complainant filed the affidavit before the trial court. To substantiate the argument, learned counsel for the second respondent has drawn my attention

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[1] t o A.C.Narayanan v State of Maharashtr a , wherein the Hon’ble Supreme Court at para 26 (Manupatra) held as under:

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26. While holding that there is no serious conflict between the decisions in MMTC Ltd., v Medchal Chemicals and Pharma [2] (P) Ltd . and Janki Vashdeo Bhojwani Indusind Bank [3] Ltd . , we clarify the position and answer the questions in the following manner: (i) Filing of complaint petition under Section 138 of N.I. Act through power of attorney is perfectly legal and competent. (ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.

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(iii) It is required by the complainant to make specific assertion

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as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case. (iv) In the light of Section 145 of N.I. Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I. Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.

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(v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.

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As per the principle enunciated in the case cited supra, G.P.A. Holder can file the complaint and the court can take cognizance of offence basing on the affidavit filed by the complainant.

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A perusal of the record reveals that the trial court has strictly adhered to the procedure as contemplated under Cr.P.C., as well as the Negotiable Instruments Act. The trial Court has not committed any illegality or irregularity while taking cognizance of offence.

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Having regard to the facts and circumstances of the case and also the principles enunciated in the case cited supra, I am of the considered view that the contentions raised by the learned counsel for petitioners are not legally sustainable.

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Hence, the criminal petition is dismissed. Miscellaneous petitions, if any pending in the criminal petition, shall stand closed.

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_________________________ T.SUNIL CHOWDARY, J

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August 22, 2014. YS

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[1] AIR 2014 SC 630

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[2] (2002) 1 SCC 234

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[3] (2005) 2 SCC 217

M/s. Matuthi Travels , v. The State of Andhra Pradesh

Case brief

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M/s. Matuthi Travels , v. The State of Andhra Pradesh

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