ALOK VERMA Vs. STATE OF UTTARAKHAND AND ANOTHER
HIGH COURT OF UTTARAKHAND
State of Uttarakhand and another
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Servesh Kumar Gupta, J. -
(1.) BY means of this petition, a prayer has been made to quash the order of cognizance dated 16.05.2007 passed by Special Judicial Magistrate, Haridwar in Criminal Case No. 1371 of 2007 titled as Vinod Kumar Vs. Alok Verma. The said order of cognizance asked the applicant to stand trial for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for brevity hereinafter called as "Act"). In short, the facts are that Vinod Kumar allegedly gave Rs. 8,75,000/ - on 11.03.2007, as debt, to applicant Alok Verma on the assurance that the money shall be returned exactly after a month. The same was not returned as promised but a cheque bearing no. 144194 to the tune of Rs. 8,75,000/ - was issued by Alok Verma, which he drew from his banker - Punjab National Bank, Jwalapur, Haridwar. The cheque was submitted by Vinod Kumar for collection through his banker but the same was returned with an endorsement that account was closed. Memo of the Bank, which is Annexure no. 6 with the petition also explicates that cheque was also returned because it exceeded the arrangement. Be that as it may, Vinod Kumar sent a notice under Section 138 (b) of the Act on 17.04.2007, which was presumably served upon Alok Verma but payment was not made so Vinod Kumar filed the impugned complaint on dated 09.05.2007 by engaging a counsel and signing Vakalatnama on the same day. Prior to filing of the complaint, Vinod Kumar executed a power of attorney authorizing his friend Pawan Manchanda to proceed with the said case of Negotiable Instruments Act against Alok Verma. It is pertinent to mention that this power of attorney was executed on 28.04.2007 while the complaint was filed by Vinod Kumar on 09.05.2007 and not by Pawan Manchanda. On the strength of aforesaid power of attorney statement under Section 200 Cr.P.C. was got recorded by Pawan Manchanda on 09.05.2007 i.e. the date of filing of complaint.
(2.) IT appears that Vinod Kumar, after signing on every page of complaint and Vakalatnama, did not go to the court himself but sent his friend Pawan Manchanda there, for being present and to get the statement recorded under Section 200 Cr.P.C. in the matter. Learned Magistrate passed order of cognizance on 16.05.2007 and has mentioned in his order that Vinod Kumar examined under Section 200 Cr.P.C. It is evident that learned Magistrate was unmindful and due to oversight, he has mentioned that Vinod Kumar has produced himself and got his statement recorded under Section 200 Cr.P.C. while this was factually not true. Learned counsel for the applicant has relied upon the following two precedents of Hon'ble Apex Court viz. Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd. reported in : (2005) 2 SCC 217 and Shankar Finance and Investments Vs. State of Andhra Pradesh reported in, (2008) 3 SCC (Cri) 558. The ratio propounded by the Hon'ble Apex Court in both the above precedents is that power of attorney holder could produce himself before the Court for recording statement under Section 200 Cr.P.C. when he was personally aware about the entire facts and circumstances of transaction, in dispute. If he was not aware, then there is no meaning to record his statement under Section 200 Cr.P.C. by the court. In that case, it is only the complainant, who is aware about the facts and circumstances of the transaction could examine himself under section 200 Cr.P.C. before the Magistrate.
(3.) ALTHOUGH , power of attorney holder can institute a complaint as well as examine himself under Section 200 Cr.P.C. but it is possible only when he is personally aware about the facts and circumstances of the transaction. If it is not so, then it is meaningless to examine the power of attorney holder under Section 200 Cr.P.C. In the case of Shankar Finance (supra), the Hon'ble Apex Court has set aside the impugned order of cognizance in the similar matter and directed the Magistrate to proceed with the complaint after recording the statement of the complainant himself. So as per the said law set forth by the Hon'ble Apex Court, here also impugned order of cognizance is set aside with a direction to the learned Magistrate to proceed with the complaint after recording the statement of complainant and pass appropriate orders, as he deems fit. With this direction, the petition is disposed of accordingly.;
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