Power of attorney holder can maintain a private complaint filed under Section 200 of the Code.

 

Mr. Jakka Vinod Kumar Reddy vs State Of Telangana on 5 February, 2021

Author: K. Lakshman

Bench: K. Lakshman

         HONOURABLE SRI JUSTICE K. LAKSHMAN

             CRIMINAL PETITION No.222 OF 2021

ORDER:

This Criminal Petition is filed under Section - 482 of the Code of Criminal Procedure, 1973 (for short 'Code') seeking a direction to VIII Additional Metropolitan Sessions Judge - cum - Special Court for Economic Offences at Nampally, Hyderabad (for short 'Sessions Court') to take cognizance of the complaint in CC (SR) No.2628 of 2020 and consequently number the same.

2. Heard Mr. S. Ravi, learned Senior Counsel representing M/s. R.S. Associates, learned counsel for the petitioner and the learned Public Prosecutor.

3. The learned counsel for the petitioner has filed a memo vide USR No.5288 of 2021 dated 02.02.2021 mentioning that respondent Nos.2 and 3 herein are not necessary parties.

4. The petitioner herein has filed a complaint in CC (SR) No.2628 of 2020 under Section - 200 of the Code against respondent Nos.2 and 3 herein for the offences punishable under Sections - 447, 448, 451 of the Companies Act, 2013 and Sections - 628 and 629A of the Companies Act, 1956 and Sections - 405, 415, 420, 425, 464, 468, 471 and 120-B of IPC. The said complaint has been filed by the Power of Attorney Holder of the complainant, who is authorized to file the said complaint vide Power of Attorney dated 13.12.2019.

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5. The said complaint was filed on 21.09.2020, and the same was returned on 02.12.2020 by the learned Sessions Judge with an objection as to maintainability of said complaint by Power of Attorney Holder of the complainant. The petitioner herein has re-submitted the said complaint along with a memo stating that:

"It is respectfully submitted that a Power of Attorney Holder can maintain a Private Complaint under Section 200 of Cr.P.C. at the behest of the original Complainant. This position has been confirmed by the Hon'ble Supreme Court in A.C. Narayanan Vs. State of Maharashtra (AIR 2014 SC 630). A copy of the Judgment is annexed.

Though The Judgment in A.C. Narayanan Vs. State of Maharashtra was in respect of an offence under Section 138 of the Negotiable Instruments Act, the Hon'ble Supreme Court has laid down the general principles in relation to Section 200 of Cr.P.C. The Hon'ble High Court of Karnataka in CrlP.No.1174 of 2012 has applied the principles laid down by the Hon'ble Supreme Court in A.C. Narayanan Vs. State of Maharashtra in a private complaint instituted in respect of offence under IPC. A copy of the judgment of the Hon'ble High Court of Karnataka is annexed.

It is further submitted that the present Complaint has been instituted under the provisions of the Companies Act 1956 as well as the provisions of the Companies Act, 2013. The Complainant undertakes to withdraw the prosecutions under the 1956 Act, if found to be not maintainable at the time of framing of charges."

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6. Thereafter, the Sessions Court has returned the said complaint with the following endorsement on 05.01.2021:

"Explain the locus standi of the GPA Holder of the complainant to file the complaint before this Court under Companies Act, 2013."

7. Mr. S. Ravi, learned Senior Counsel, would submit that the petitioner herein has re-submitted the said complaint specifically explaining that Power of Attorney can maintain a private complaint under Section 200 of the Code at the behest of the original complainant. Reliance was also placed on the principle laid down by the Apex Court in A.C. Narayanan v. State of Maharashtra1 and Nagarajappa v. H.D. Kumar Swamy2. But, the Sessions Court instead of taking cognizance of the said complaint and numbering it, returned the same with the above said objection and, therefore, the present petition.

8. The above said facts would reveal that the Sessions Court has returned the complaint only on the ground that the complaint filed by the petitioner herein through Power of Attorney Holder is not maintainable. Though a memo dated 18.12.2020 said to have filed by the petitioner along with the aforesaid decisions, there is no reference with regard to the same and in the endorsement dated 05.01.2021, there is no consideration of the principle laid down in the aforesaid decisions by the Sessions Court.

. (2014) 11 SCC 790 . Crl.P. No.1174 of 2012 decided on 11.10.2018 KL,J

9. In A.C. Narayanan1, a Three-Judge Bench of the Apex Court had an occasion to deal with the issue of maintainability of complaint filed by a original complainant through power of attorney holder. In the said case, the complaint was filed under Section 200 of the Code for the offence under Section 138 of the Negotiable Instruments Act, 1881. The complaint was filed through a power of attorney holder. The Apex Court by referring to various judgments rendered by it earlier, held as under:

"19). As noticed hereinabove, though Janki Vashdeo Bhojwani (supra), relates to powers of Power of Attorney holder under CPC but it was concluded therein that a plaint by a Power of Attorney holder on behalf of the original plaintiff is maintainable provided he has personal knowledge of the transaction in question. In a way, it is an exception to a well settled position that criminal law can be put in motion by anyone [vide Vishwa Mitter (supra)] and under the Statute, one stranger to transaction in question, namely, legal heir etc., can also carry forward the pending criminal complaint or initiate the criminal action if the original complainant dies [Vide Ashwin Nanubhai Vyas vs. State of Maharashtra (1967) 1 SCR 807]. Keeping in mind various situations like inability as a result of sickness, old age or death or staying abroad of the payee or holder in due course to appear and depose before the Court in order to prove the complaint, it is permissible for the Power of Attorney holder or for the legal representative(s) to file a complaint and/or continue with the pending criminal complaint for and on behalf of payee or holder in due course.

KL,J However, it is expected that such power of attorney holder or legal representative(s) should have knowledge about the transaction in question so as to able to bring on record the truth of the grievance/offence, otherwise, no criminal justice could be achieved in case payee or holder in due course, is unable to sign, appear or depose as complainant due to above quoted reasons. Keeping these aspects in mind, in MMTC (supra), this Court had taken the view that if complaint is filed for and on behalf of payee or holder in due course, that is good enough compliance with Section 142 of N.I. Act."

10. Following the said principle held by the Apex Court in A.C. Narayanan1, the Karnataka High Court held in Nagarajappa2 that power of attorney holder can maintain a private complaint filed under Section 200 of the Code. In the said case, a complaint was filed by the original complainant through his General Power of Attorney Holder for the offences punishable under Sections 500, 501 and 502 of IPC.

11. The Karnataka High Court applying the principle laid down by the Apex Court in A.C. Narayanan1 and other judgments held that in view of the fact that there being no power under Section 199 of the Code for filing a petition through power of attorney holder, the complaint filed by the original complainant through power of attorney holder is maintainable.

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12. In view of the above stated authoritative principle laid down by the Apex Court, followed by the Karnataka High Court, coming to the facts of the case on hand, the original complainant, Mr. Jakka Vinod Kumar Reddy, has filed a complaint under Section 200 of the Code against respondent Nos.2 and 3 herein for the aforesaid offences through his power of attorney holder, Mr. Jakka Kiran Reddy. In the said complaint, it is specifically mentioned that the power of attorney holder is well acquainted with the facts of the case and he has been duly authorized by the original complainant to file the complaint at his behest. A copy of the power of attorney dated 13.12.2019 executed by the said Mr. Jakka Vinod Kumar Reddy is also filed. In the said power of attorney, it is specifically mentioned that the original complainant is living in Bangkok, Thailand, being pre-occupied to pursue the professional badminton training of his daughter, Miss. Jakka Vaishnavi Reddy, who represents India in Badminton on the International Circuit, was being ranked as Junior World No.2, as such, he will not be in a position to travel to Hyderabad, thereof as such, he has appointed Mr. Jakka Kiran Reddy as his power of attorney holder to file complaints, civil proceedings etc. It is also mentioned in the power of attorney that he does hereby agree to ratify and confirm all the acts and deeds done by his attorney in his name and on his behalf in respect to all the Courts of India, to be constituted as acts and deeds done by him as if personally present.

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13. Thus, the above said facts would reveal that the petitioner herein has executed the above said power of attorney on 13.12.2019 to do certain acts on his behalf including filing of complaints. In the complaint, power of attorney holder has specifically mentioned that he is well acquainted with the facts of the case and he has been authorized by the complainant to file the complaint on his behalf. A perusal of the record would also reveal that the petitioner herein has filed a memo dated 18.12.2020 before the Sessions Court stating that the power of attorney holder can maintain a private complaint and also mentioned the principle laid down by the Apex Court and followed by the Karnataka High Court referred supra. Though, the said memo was filed, the Sessions Court has returned the complaint with the above said endorsement.

14. Thus, in view of the law laid down by the Apex Court, followed by the Karnataka High Court and on perusal of the record including the contents of power of attorney and the complaint, this Court is of the view that power of attorney holder can maintain a private complaint filed under Section 200 of the Code.

15. Accordingly, the present Criminal Petition is allowed, and the learned VIII Additional Metropolitan Sessions Judge - cum - Special Court for Economic Offences at Nampally, Hyderabad, is directed to take cognizance of the complaint filed in CC (SR) No.2628 of 2020 by the petitioner herein and number the same if it is otherwise KL,J in order, and proceed with further in accordance with law for trying the said complaint.

As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.

_________________ K. LAKSHMAN, J 05th February, 2021 Mgr