# Jitendra Kumar Mangla v. State of U.P. & Anr

- **Citation:** (2024) 12 ILRA 18
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-13
- **Case number:** Application U/S 482 No. 23721 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-kumar-mangla-v-state-of-u-p-anr-51196
- **Pages:** 11

## Headnote

Law
-Criminal
Procedure
Code.1973-Section
482-Negotiable
Instrument
Act,
1881-
Section
138quashing of proceeding s related to
complaints filed u/s 138 of N.I.Act for
cheque
dishonor-Held,
the
power
of
attorney holder cannot file a complaint
u/s 138 of NI Act in their own name but
can
represent
the
payee-adequate
averments in the complaint established
that the power of attorney holder had
sufficient knowledge of the transaction,
making the proceedings valid-Hence, the
complaint filed by the power of attorney
holder in their own name is legally
untenable-Proceedings
quashed,
with
liberty to file a fresh complaint in
compliance with legal requirements.(Para
1 to 25)

B. Complaint u/s 138 N.I. Act can be filed
by the power of attorney holder of payee
or holder in due course. However, the
Power of Attorney holder cannot depose
or verify on oath as complainant unless
from the averments, including verification
of the affidavit filed in support of the
complaint as well as from the supporting
document, it must be clear that power of
attorney holder has knowledge about the
fact mentioned in the complaint regarding
the transaction. if the accused disputes
the knowledge of the fact of the power of
attorney holder or his authority, the same
can be considered during the trial but the
proceeding cannot be quashed on this
ground. The transaction should be within
the knowledge of the Power of attorney
12 All. Jitendra Kumar Mangla Vs. State of U.P. & Anr.
19
holder
means
and
include
int
the
transaction which created liability for
which the cheque was issued. (Para 19)

The applications are partly allowed.

List of Cases cited:

## Text

18 INDIAN LAW REPORTS ALLAHABAD SERIES
I.P.C., Police Station Fazalganj, District
Kanpur Nagar, pending in the court of
Additional Chief Metropolitan Magistrate,
Court No. VIII, Kanpur Nagar, are hereby
quashed.

19. The present Application u/s 482
thus is allowed, subject to payment of cost
to be deposited by the parties before the
High Court Legal Services Committee,
Allahabad. Such cost has to be imposed to
let the parties (in this case) in particular and
the society in general know that the courts
cannot
remain
a
mute
spectator
to
unscrupulous and errant behaviour of
certain persons. A society that will allow its
members to misuse
its
courts, will
ultimately suffer and pay a huge cost.
Litigants, both genuine and bogus, will
always continue to stand in a common
queue. The courts have no mechanism to
pre-identify and distinguish between the
genuine and the bogus litigants. That
differentiation emerges only after the
hearing is concluded in any case and
hearing requires time. In fact, even if the
courts were to take punitive action against a
bogus litigant, then, being bound by rules
of procedure and fairness, such cases are
likely to take more time than a case of two
genuine litigants. Cost in the present case is
quantified to Rs. 5,000/- (2,500 on each
party) to be deposited before the High
Court
Legal
Services
Committee,
Allahabad, within a period of three weeks
from today.
---------
(2024) 12 ILRA 18
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.
Application U/S 482 No. 23721 of 2024
With
Application U/S 482 No. 28869 of 2024

Jitendra Kumar Mangla ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Bhuvnesh Kumar Singh

Counsel for the Opposite Parties:
G.A.

A.
Criminal
Law
-Criminal
Procedure
Code.1973-Section
482-Negotiable
Instrument
Act,
1881-
Section
138quashing of proceeding s related to
complaints filed u/s 138 of N.I.Act for
cheque
dishonor-Held,
the
power
of
attorney holder cannot file a complaint
u/s 138 of NI Act in their own name but
can
represent
the
payee-adequate
averments in the complaint established
that the power of attorney holder had
sufficient knowledge of the transaction,
making the proceedings valid-Hence, the
complaint filed by the power of attorney
holder in their own name is legally
untenable-Proceedings
quashed,
with
liberty to file a fresh complaint in
compliance with legal requirements.(Para
1 to 25)

B. Complaint u/s 138 N.I. Act can be filed
by the power of attorney holder of payee
or holder in due course. However, the
Power of Attorney holder cannot depose
or verify on oath as complainant unless
from the averments, including verification
of the affidavit filed in support of the
complaint as well as from the supporting
document, it must be clear that power of
attorney holder has knowledge about the
fact mentioned in the complaint regarding
the transaction. if the accused disputes
the knowledge of the fact of the power of
attorney holder or his authority, the same
can be considered during the trial but the
proceeding cannot be quashed on this
ground. The transaction should be within
the knowledge of the Power of attorney
12 All. Jitendra Kumar Mangla Vs. State of U.P. & Anr.
19
holder
means
and
include
int
the
transaction which created liability for
which the cheque was issued. (Para 19)

The applications are partly allowed.

List of Cases cited:

1. A.C. Narayana & anr. Vs St. of Mah. &
Anr.(2014) 11 SCC 790

2. M/s Arti Indus. Vs St. of U.P., Appl. u/s 482
No. 29906 of 2022

3. Janki Vashdeo Bhojwani Vs IndusInd Bank
Ltd. (2005) 2 SCC 217

4. M/s TRL Krosaki Refractories Ltd. Vs M/s SMS
Asia Pvt. Ltd.. (2022) 7 SCC 612

5. Vinita S. Rao Vs M/s Essen Corporate Services
Pvt. Ltd. & anr.(2015) 1 SCC 527

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Bhuvnesh Kumar Singh,
learned counsel for the applicant in
Application u/s 482 No. 23721 of 2024; Sri
Saurabh Yadav, learned counsel for the
applicant and Sri Lalit Kr. Srivastava,
learned counsel for opposite party No.2 in
Application u/s 482 No. 28869 of 2024 as
well as Sri Pankaj Saxena, learned A.G.A.
for the State.

2. Application u/s 482 No. 23721 of
2024 has been filed seeking quashing of the
entire proceeding of Complaint Case No.
3255 of 2016 (Vineeta Goyal vs. Jitendra
Kumar Mangla), under Section 138 N.I.
Act, P.S. Hari Parvat, District Agra,
including the summoning order dated
1.12.2016.

3. Application u/s 482 No. 28869 of
2024 has been filed seeking following
reliefs:-

"1. Quash the summoning order
dated
22.10.2018
and
order
dated
16.07.2024 by means of which N.B.W. has
been issued against the applicant as well as
the entire proceedings of the case No. 602
of 2018 under section 138 of the Negotiable
Instruments
Act
(Ranveer
Singh
vs.
Jitendra Kumar Mangla) P.S. Hariparvat
District Agra pending in the court of
Additional Chief Judicial Magistrate, Court
No.-5, Agra.

2. Club the proceedings of the
two
cases
belonging
to
the
same
transactions i.e. Complaint Case No. 602 of
2018 (Ranveer Singh vs. Jitendra Kumar
Mangla) and 912 of 2018 (Ranveer Singh
vs. Jitendra Kumar Mangla) and may be
tried at one trial."

4. Sri Saurabh Yadav, learned counsel
for the applicant in Application u/s 482 No.
28869 of 2024, has submitted that the
impugned complaint has been filed by the
Power of attorney holder in his name,
though the complaint under Section 138
N.I. Act can be filed on behalf of the payee
or holder in due course of the cheque, not
the power of attorney in his name. His
second contention is that from the bare
perusal of the complaint, it is clear that
there is no averment in the complaint that
the
power
of
attorney
holder
had
knowledge of the transaction in question. It
is also submitted that the transaction means
the transfer of money as well as the
handing over of the cheque in lieu of
payment of that money. It is also submitted
that in this case, the father of the
complainant was the power of attorney
holder, but he filed the complaint in his
name instead of filing the same in the name
of the payee or holder in due course.

5. In support of his contention, learned
counsel for the applicant has relied upon
20 INDIAN LAW REPORTS ALLAHABAD SERIES
the judgement of Apex Court in the Case of
A.C. Narayana and another vs. State of
Maharashtra and another; (2014) 11 SCC
790, paragraphs No. 15, 19, 20, 21, 22, 23,
24, wherein the Apex Court observed that
the complaint could be filed by the power
of attorney holder on behalf of the payee
and not in his name and also that 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.

6. Learned counsel for the applicant in
has also relied upon the judgment of the
coordinate Bench in M/s Arti Industries vs.
State of U.P.; Application u/s 482 No.
29906 of 2022; paragraphs No. 22, 23, 24
and also the judgement of the Apex Court
in Janki Vashdeo Bhojwani vs. IndusInd
Bank Ltd.; (2005) 2 SCC 217; paragraphs
No. 10, 11, 13 & 15.

7. Similarly, Sri Bhuvnesh Kr. Singh,
learned counsel for the applicant in
Application u/s 482 No. 23721 of 2024,
also argued that the power of attorney
holder, even if a near relative of the payee,
cannot file the complaint unless there is
specific averment regarding his personal
knowledge
about
the
transaction
in
question. It is further submitted that merely
mentioning in the verification clause that
the power of attorney holder has personal
knowledge about the fact mentioned in the
affidavit of the statement will not be
sufficient.

8. Per contra, Sri Pankaj Saxena,
learned A.G.A. for the State, has heavily
relied upon paragraph No.21 of the
judgement in A.C. Narayan (supra) and
admitted the fact that the power of attorney
holder cannot file a complaint in his name.
However, the same can be filed in the name
of the payee or holder in due course.
Learned A.G.A. further contended that so
far as the knowledge of power of attorney
holder is concerned, there is no requirement
that there must be specific averment in the
complaint itself regarding its personal
knowledge about the transaction of money
as well as handing over of the cheque and it
is sufficient if on the basis of supporting
document and other surrounding facts it is
clear that the power of attorney holder has
knowledge about the transaction then the
complaint is maintainable on behalf of the
power of attorney holder.

9. In support of his contention, learned
A.G.A. has relied upon the judgement of
the Apex Court in the case of M/s TRL
Krosaki Refractories Ltd. Vs. M/s SMS
Asia Private Ltd.. (2022) 7 SCC 612;
paragraphs No. 12, 13 & 14 as well as the
judgement in Vinita S. Rao vs. M/s Essen
Corporate Services Pvt. Ltd. And another.;
(2015) 1 SCC 527; (paragraphs No. 16 &
19) wherein the Apex Court observed that
if the complaint is filed by the husband
then sufficient knowledge of transaction
can be gathered from the supporting
documents and surrounding circumstances
including
the
verification
clause
of
complaint and that would be sufficient for
the maintainability of complaint on behalf
of the power of attorney holder.

10. The learned A.G.A. also submitted
that knowledge of the transaction to the
power of attorney holder means the
transaction of handing over the cheque and
not the transfer of money prior to handing
over of the cheque.

11. Learned counsel for opposite party
No.2 in Application u/s 482 No. 28869 of
2024 has submitted that being father of the
complainant power of attorney holder had
12 All. Jitendra Kumar Mangla Vs. State of U.P. & Anr.
21
knowledge of the transaction of allotment
of flat to his son, when that transaction
could not be materialized then the applicant
gave the cheque in question to return the
money which he took in advance at the
time of booking of flat and he had also
given notice after bouncing of the cheque
on behalf of the payee.

12. After hearing the rival submissions
of learned counsel for the parties and on the
perusal of the record, following questions
arise for consideration:-

(i). Whether the power of attorney
holder of payee or holder in due course can
file a complaint under Section 138 N.I. Act
in his name?

(ii)
Whether
the
power
of
attorney holder can file a complaint under
Section 138 N.I. Act on behalf of the payee
or holder in due course, if yes, what is the
necessary requirement for filing such a
complaint?

(iii) Which transaction should be
within the knowledge of the Power of
attorney holder.

13. So far as the first question is
concerned the Apex Court, in the case of
A.C. Narayan (supra), has already
observed that the power of attorney
holder cannot file a complaint in his own
name as if he was the complainant, but
he can initiate criminal proceeding on
behalf of his principal. Paragraph No.31
of A.C. Narayan (supra) is quoted as
under:-

"31. In view of the discussion, we
are of the opinion that the attorney holder
cannot file a complaint in his own name as
if he was the complainant, but he can
initiate criminal proceedings on behalf of
his principal. We also reiterate that where
the payee is a proprietary concern, the
complaint can be filed:

(i) by the proprietor of the
proprietary concern, describing himself as
the sole proprietor of the "payee";

(ii)
the
proprietary
concern,
describing itself as a sole proprietary
concern, represented by its sole proprietor;
and

(iii)
the
proprietor
or
the
proprietary concern represented by the
attorney holder under a power of attorney
executed by the sole proprietor."

14. Given the above legal position,
this Court holds that the power of attorney
holder of the payee or holder in due course
cannot file a complaint in his name as if he
was complainant.

15. So far as the second question is
concerned, this issue is no more res integra.
Apex Court in the case of Janki Vashdeo
Bhojwani (supra) considered this issue and
observed that the Power of attorney holder
can act on behalf of the Principal, therefore,
he can file complaint on behalf of his
Principal, but cannot depose for the
principal on the facts which were in
personal knowledge of the principal.
Paragraph
No.13
of
Janki
Vashdeo
Bhojwani (supra) is being quoted as
under:-

"13. Order 3 Rules 1 and 2 CPC
empower the holder of power of attorney to
"act" on behalf of the principal. In our
view the word "acts" employed in Order 3
Rules 1 and 2 CPC confines only to in
respect of "acts" done by the power-ofattorney holder in exercise of power
granted by the instrument. The term "acts"
would not include deposing in place and
instead of the principal. In other words, if
the power-of-attorney holder has rendered
22 INDIAN LAW REPORTS ALLAHABAD SERIES
some "acts" in pursuance of power of
attorney, he may depose for the principal in
respect of such acts, but he cannot depose
for the principal for the acts done by the
principal and not by him. Similarly, he
cannot depose for the principal in respect
of the matter of which only the principal
can have a personal knowledge and in
respect of which the principal is entitled to
be cross-examined."

16. Apex Court again considered this
issue in the case of A.C. Narayan (supra)
and observed that the power of attorney
holder of payee or holder in dues course
can file a complaint under Section 138 N.I.
Act. It is further observed that the power of
attorney holder can also depose and verify
on oath before the court to prove the
contents of the complaint, subject to the
condition that the power of attorney holder
either must have witnessed the transaction
or possessed due knowledge regarding the
transaction and this fact must be explicitly
mentioned in the complaint. It is further
observed that if power of attorney holder
has no knowledge of the transaction then he
cannot
be
examined
as
a
witness.
Paragraphs No. 28, 29, 30, 33 of A.C.
Narayan (supra) are quoted as under.

"28.
The
power-of-attorney
holder is the agent of the grantor. When the
grantor authorises the attorney holder to
initiate legal proceedings and the attorney
holder accordingly initiates such legal
proceedings, he does so as the agent of the
grantor and the initiation is by the grantor
represented by his attorney holder and not
by the attorney holder in his personal
capacity. Therefore, where the payee is a
proprietary concern, the complaint can be
filed by the proprietor of the proprietary
concern, describing himself as the sole
proprietor of the payee, the proprietary
concern, describing itself as a sole
proprietary concern, represented by its sole
proprietor, and the proprietor or the
proprietary concern represented by the
attorney holder under a power of attorney
executed by the sole proprietor. However,
we make it clear that the power-of-attorney
holder cannot file a complaint in his own
name as if he was the complainant. In other
words, he can initiate criminal proceedings
on behalf of the principal.

29. From a conjoint reading of
Sections 138, 142 and 145 of the NI Act as
well as Section 200 of the Code, it is clear
that it is open to the Magistrate to issue
process on the basis of the contents of the
complaint, documents in support thereof
and
the
affidavit
submitted
by
the
complainant in support of the complaint.
Once the complainant files an affidavit in
support of the complaint before issuance of
the process under Section 200 of the Code,
it is thereafter open to the Magistrate, if he
thinks fit, to call upon the complainant to
remain present and to examine him as to
the
facts
contained
in
the affidavit
submitted by the complainant in support of
his complaint. However, it is a matter of
discretion and the Magistrate is not bound
to call upon the complainant to remain
present before the court and to examine
him upon oath for taking decision whether
or not to issue process on the complaint
under Section 138 of the NI Act. For the
purpose of issuing process under Section
200 of the Code, 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 NI Act. It is only if
and
where
the
Magistrate,
after
considering the complaint under Section
138 of the NI Act, documents produced in
support thereof and the verification in the
form of affidavit of the complainant, is of
12 All. Jitendra Kumar Mangla Vs. State of U.P. & Anr.
23
the
view
that
examination
of
the
complainant or his witness(s) is required,
the
Magistrate
may
call
upon
the
complainant to remain present before the
court and examine the complainant and/or
his witness upon oath for taking a decision
whether or not to issue process on the
complaint under Section 138 of the NI Act.

30. In the light of the discussion,
we are of the view that the power-ofattorney holder may be allowed to file,
appear and depose for the purpose of issue
of process for the offence punishable under
Section 138 of the NI Act. An exception to
the above is when the power-of-attorney
holder of the complainant does not have a
personal knowledge about the transactions
then he cannot be examined. However,
where
the
attorney
holder
of
the
complainant is in charge of the business of
the complainant payee and the attorney
holder alone is personally aware of the
transactions, there is no reason why the
attorney holder cannot depose as a witness.
Nevertheless, an explicit assertion as to the
knowledge of the power-of-attorney holder
about the transaction in question must be
specified in the complaint. On this count,
the fourth question becomes infructuous.

33. While holding that there is no
serious conflict between the decisions in
M.M.T.C. [M.M.T.C. Ltd. v. Medchl
Chemicals and Pharma (P) Ltd., (2002) 1
SCC 234 : 2002 SCC (Cri) 121] and Janki
Vashdeo
Bhojwani
[Janki
Vashdeo
Bhojwani v. IndusInd Bank Ltd., (2005) 2
SCC 217] , we clarify the position and
answer the questions in the following
manner:

33.1. Filing of complaint petition
under Section 138 of the NI Act through
power of attorney is perfectly legal and
competent.

33.2.
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.

33.3. It is required by the
complainant to make specific assertion 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.

33.4. In the light of Section 145 of
the NI 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 NI 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 NI
Act.

33.5. 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."

17. The judgement of A.C. Narayan
(supra) was again considered by the Apex
Court in the case of M/s TRL Krosaki
Refractories Ltd. (supra). It was observed
that the assertion about the knowledge
should be said explicitly as stated in A.C.
Narayan (supra) cannot be understood to
mean that assertion should be in any
particular manner and what is required is if
the complaint is filed in the name of payee
24 INDIAN LAW REPORTS ALLAHABAD SERIES
and if the person who is prosecuting the
complaint is different from the payee, the
authorization thereof and the contents of
the complaint are within his knowledge. If
there is
a dispute regarding proper
authorization or knowledge of transaction
to the power of attorney holder, then it
would be open for the accused to dispute
authorization during the course of trial and
quashing of the complaint on such ground
is not justified as the proper authorization
and knowledge of the fact can only be an
issue for trial. Paragraph No. 25 of M/s
TRL Krosaki Refractories Ltd. (supra) is
quoted as under:-

"25. In that view, the position
that would emerge is that when a company
is the payee of the cheque based on which a
complaint is filed under Section 138 of the
NI Act, the complainant necessarily should
be
the
company
which
would
be
represented by an employee who is
authorised. Prima facie, in such a situation
the indication in the complaint and the
sworn statement (either orally or by
affidavit) to the effect that the complainant
(Company) is represented by an authorised
person who has knowledge, would be
sufficient. The employment of the terms
"specific assertion as to the knowledge of the
power-of-attorney
holder"
and
such
assertion about knowledge should be "said
explicitly" as stated in A.C. Narayanan [A.C.
Narayanan v. State of Maharashtra, (2014)
11 SCC 790 : (2014) 4 SCC (Civ) 343]
cannot be understood to mean that the
assertion should be in any particular manner,
much less only in the manner understood by
the accused in the case. All that is necessary
is to demonstrate before the learned
Magistrate that the complaint filed is in the
name of the "payee" and if the person who is
prosecuting the complaint is different from
the payee, the authorisation therefor and that
the contents of the complaint are within his
knowledge. When, the complainant/payee is a
company, an authorised employee can
represent the company. Such averment and
prima facie material is sufficient for the
learned Magistrate to take cognizance and
issue process. If at all, there is any serious
dispute with regard to the person prosecuting
the complaint not being authorised or if it is
to be demonstrated that the person who filed
the complaint has no knowledge of the
transaction and, as such that person could
not have instituted and prosecuted the
complaint, it would be open for the accused
to dispute the position and establish the same
during the course of the trial. As noted in
Samrat Shipping Co. [Samrat Shipping Co.
(P) Ltd. v. Dolly George, (2002) 9 SCC 455 :
2003 SCC (Cri) 1224] , dismissal of a
complaint at the threshold by the Magistrate
on the question of authorisation, would not
be justified. Similarly, we are of the view that
in such circumstances entertaining a petition
under Section 482 to quash the order taking
cognizance by the Magistrate would be
unjustified when the issue of proper
authorisation and knowledge can only be an
issue for trial."

18. It is further observed by the Apex
Court that what can be an explicit averment
cannot be determined in a straight jacket
but
will
have
to
gather
from
the
circumstances and the manner in which it
has
been
averred
and
conveyed,
considering
the
entire
complaint,
its
verification
and
other
supporting
documents, filed along with the complaint.
Paragraphs No. 21 of M/s TRL Krosaki
Refractories Ltd. (supra) are quoted as
under:-

"21. A meaningful reading of the
above would indicate that the company
having authorised the General Manager
12 All. Jitendra Kumar Mangla Vs. State of U.P. & Anr.
25
(Accounting) and the General Manager
(Accounting) having personal knowledge
had in fact been clearly averred. What can
be treated as an explicit averment, cannot
be put in a straitjacket but will have to be
gathered from the circumstance and the
manner in which it has been averred and
conveyed, based on the facts of each case.
The manner in which a complaint is drafted
may vary from case to case and would also
depend on the skills of the person drafting
the same which by itself, cannot defeat a
substantive
right.
However,
what
is
necessary to be taken note of is as to
whether the contents as available in the
pleading would convey the meaning to the
effect that the person who has filed the
complaint, is stated to be authorised and
claims to have knowledge of the same. In
addition, the supporting documents which
were available on the record by themselves
demonstrate the fact that an authorised
person, being a witness to the transaction
and having knowledge of the case had
instituted the complaint on behalf of the
"payee" company and therefore, the
requirement of Section 142 of the NI Act
was satisfied. In Vinita S. Rao v. Essen
Corporate Services (P) Ltd. [Vinita S. Rao
v. Essen Corporate Services (P) Ltd.,
(2015) 1 SCC 527 : (2015) 1 SCC (Civ)
558 : (2015) 1 SCC (Cri) 726] , to which
one of us (the Hon'ble CJI) was a member
of the Bench has accepted the pleading of
such a nature to indicate the power to
prosecute the complaint and knowledge of
the transaction as sufficient to maintain the
complaint."

19. From the legal position discussed
above, two questions which were framed
above are answered as follows:-

(i). That the power of attorney
holder cannot file a complaint in his
name as if he was the complainant and
he can prosecute only on behalf of his
Principal;

(ii) Complaint u/s 138 N.I. Act
can be filed by the power of attorney
holder of payee or holder in due course.
However, the Power of attorney holder
cannot depose or verify on oath as
complainant unless from the averments,
including the verification of the affidavit
filed in support of the complaint as well
as from the supporting document, it
must be clear that power of attorney
holder has knowledge about the fact
mentioned in the complaint regarding
the transaction. If the accused disputes
the knowledge of the fact of the power of
attorney holder or his authority, the
same can be considered during the trial
but the proceeding cannot be quashed on
this ground.

(iii) The transaction should be
within the knowledge of the Power of
attorney holder means and include in the
transaction which created liability for
which the cheque was issued.

20. Coming back to the facts of
Application u/s 482 No. 23721 of 2024, it
is clear that in this case, the Power of
attorney holder of the complainant has
mentioned in paragraph No.1 of the
complaint that he is well aware of the facts
of the case and in the paragraph No.7 of the
complaint the power of attorney holder has
mentioned that he is also the witness of the
complaint in the present case. Paragraphs
No. 1 & 7 of the complaint dated 6.7.2016
are being quoted as under:-

"1.
That,
Complainant
is
Proprietor of M/S Shyam Lal Baikuntnath
Designs, Awas Vikas Colony, Agra and
knows the accused very well since a long
time. The present complaint is being filed
26 INDIAN LAW REPORTS ALLAHABAD SERIES
by Sri Mukund Goyal S/O Late Om
Prakash Goyal as stated above, who has
been authorized by Complainant by way of
Power of Attorney dated 06/07/2016 to file
and pursue the case noted above in the
appropriate Court and very well aware
with the facts of case.

7- That under the circumstances
accused is liable to be prosecuted as stated
above.
The
witnesses
of
the
the
complainant are, she herself, Sri Mukono
Goyal, officers and staff of banks and post
offices concern and Sri Ravi Gupta Adv."

21. Similarly, in the statement filed on
an affidavit under Section 200 Cr.P.C., the
power
of
attorney
holder
of
the
complainant again stated in paragraph No.1
that he is well aware of the facts of the case
and then again in the verification part, he
has mentioned that he has personal
knowledge of the fact mentioned in
paragraphs No. 1 to 7 of the affidavit.
Paragraph No.1 of the statement u/s 200
Cr.P.C., as well as verification of the
statement affidavit are quoted as under:-

"1.
That,
Complainant
is
Proprietor of M/S Shyam Lal Baikuntnath
Designs, Awas Vikas Colony, Agra and
knows the accused very well since a long
time. The present complaint is being filed
by deponent, who has been authorize by
Complainant by way of Power of Attorney
dated 06/07/2016 to file and pursue the
case noted above in the appropriate Court
and very well knows the facts of case.

Verification

The contents of Para 1 to Para 7
are true to the personal knowledge of the
deponent, nothing has been concealed
therein. Verified at Civil Courts Agra on
06/07/2016."

22. From the Power of attorney, it is
also clear that the power of attorney holder
is the husband of the complainant, who
works with her and is well aware of the
facts of the case. The power of attorney is
being quoted as under:-

" POWER OF ATTORNEY

This
Power
of
attorney
is
executed on this day 6th day of July 2016
by Mrs. Vineeta Goyal, Proprietor -M/S
Shyamlal Baikunth Nath Designs, Awas
Vikas Colony, Agra, as the executant is a
Business professional and always busy in
her Business and domestic work.
In Favour of

Szi Mukund Goyal S/O Late Szi
Om Prakash Goyal R/O 5/89, Madia
Fatra, Agra, who is husband of executant
and works with her and well aware with
the facts of the case.

Who shall have all the powers to
act and appear on behalf of executant of
this power of Attorney before the Courts
and do all acts, to engage lawyer, to file
case and do all acts that may be necessary
for carrying out the proceedings on behalf
of executant against Jitendra Kumar
Mangla.

The
executant
has
put
her
signature on this Power of Attorney."

23. From the perusal of the order
sheet, it also appears that the applicant
accused has not appeared before the court
below in the complaint proceeding despite
the
issuance
of
coercive
measures.
Therefore, the complainant could not be
examined
or
cross-examined
by
the
applicant-accused so that more facts
regarding knowledge of the power of
attorney holder about the transaction could
come out on record. In the case of Vinita S.
Rao (supra), the Apex Court already
considered this issue and observed that if
12 All. Jitendra Kumar Mangla Vs. State of U.P. & Anr.
27
the husband is the power of attorney holder
of his wife, then it could be presumed that
he had witnessed all the transactions and
possessed due knowledge about them.
Paragraphs No. 17 & 18 of Vinita S. Rao
(supra) is quoted as under:-

"17. Thus, it is clear that the
complaint under Section 138 of the NI Act
can be filed through the power-of-attorney
holder. In this case, Sudhir Gulvady is the
power-of-attorney holder of the appellant
and he has filed the complaint on her
behalf. The learned Magistrate recorded
the statement of the power-of-attorney
holder under Section 200 of the Code on 53-2004 and issued summons. We have
perused the said statement. It is signed by
the power-of-attorney holder and by the
learned Magistrate. A.C. Narayanan [A.C.
Narayanan v. State of Maharashtra, (2014)
11 SCC 790 : (2014) 4 SCC (Civ) 343 :
AIR 2014 SC 630] states that power-ofattorney holder must have knowledge about
the relevant transactions. There can be no
dispute about the fact that in this case, the
power-of-attorney
holder
being
the
husband of the appellant has witnessed all
transactions
and
he
possesses
due
knowledge about them. He is associated
with all transactions at all crucial stages.
The appellant has placed this fact in the
forefront in her complaint. The relevant
paragraph of the complaint reads as under:

"3.
The
complainant
is
represented
by
her
power-of-attorney
holder Mr Sudhir Gulvady, her husband, as
the complainant is unable to come to the
court due to her not keeping good health
and the whole transaction is also within the
knowledge of her power-of-attorney holder
who is her husband."

18. The appellant has examined
herself on oath. In her evidence, she has
stated that the office of the respondents is
in the same building in which her
husband's office is situated and her
husband being acquainted with Respondent
2, who is the Managing Director of
Respondent
1,
he
was
aware
that
Respondent 2 was functioning as a broker
and, hence, she along with her husband
had initial discussion with Respondent 2
for transactions in 10,000 shares. Her
evidence substantiates her case that her
husband had knowledge about the entire
transaction. Hence, the submission that the
complaint could not have been filed
through power-of-attorney holder must
fail."

24. From the above fact, it is clear that
for the prima facie issuance of process,
there are sufficient averments on record
regarding knowledge of the Power of
attorney holder about the transaction. Even
otherwise, the Apex Court has already
observed in the case of M/s TRL Krosaki
Refractories Ltd. (supra) that if there is
some dispute about the knowledge of the
transaction on the part of the power of
attorney holder, that ground can be taken
during trial but cannot be a ground to quash
the impugned proceeding.

25. In view of the above, this Court
does not find any illegality in the impugned
proceeding, challenged in application u/s
482 No. 23721 of 2024. Accordingly, the
same is dismissed.

26. Coming to the fact of Application
u/s 482 No. 28869 of 2024, in this case, as
per the complaint, a cheque of Rs. 10 Lakh
was given by the applicant in the name of
Pankaj Singh who executed power of
attorney in favour of opposite party No.2.
On presenting that cheque before the bank,
same was returned with the endorsement
"fund
insufficient"
on
14.12.2017.
28 INDIAN LAW REPORTS ALLAHABAD SERIES
Information of the same was given by the
bank to the payee, Pankaj Singh, on
16.12.2017. After that, a registered notice
was sent to the applicant by the Advocate
of payee Pankaj Singh through registered
post on 8.1.2018, which was received by
the applicant on 9.1.2018. However,
despite the expiry of 15 days from the date
of service, the cheque amount was not paid
by the applicant. Therefore, the complaint
was
filed
against
the
applicant
on
12.2.2018 by Pankaj Singh through his
power of attorney holder Ranveer Singh,
also the father of Pankaj Singh. From a
perusal of the impugned complaint, it is not
in dispute that impugned complaint was
filed by the power of attorney holder of
payee Ranveer Singh in his own name
instead of filing in the name of complainant
Pankaj Singh, which is not permissible
under
the
law
as
observed
above.
Therefore, this Application deserves to be
allowed.

27. Accordingly, the application u/s
482 No. 28869 of 2024 is allowed. The
impugned proceeding arising out of Case
No. 602 of 2018 (Ranveer Singh vs.
Jitendra Kumar Mangla), under Section
138 N.I. Act, P.S. Hariparvat District Agra
is
hereby
quashed.
However,
the
complainant, Pankaj Singh, is at liberty to
file a fresh complaint in accordance with
law.
---------
(2024) 12 ILRA 28
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.12.2024

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Criminal Misc. Bail Cancellation Application No.
475 of 2024

Yogesh Kumar Garg ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Siddhartha Srivastava

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 420, 467, 468, 471, 406, 504,
506 & 120B - Against grant of bail -
Maintainability - Jurisdiction - The Code of
Criminal Procedure, 1973 - Section 362 -
Applicant/first
informant
moved
bail
cancellation application before Sessions
Court on ground that conditions imposed
by Court of Sessions for grant of bail had
not complied with inasmuch as amount of
Rs.42 lacs as undertaken by opposite
party No. 2 to be deposited not deposited
and only Rs.4 lacs deposited during
pendency of bail cancellation application -
Application rejected - Impugned order.
(Para 3, 4)

Held, applicant already approached Court
of Sessions seeking cancellation of bail
granted u/s 439 (2) Cr.P.C - The Court of
Sessions refused to cancel bail already
granted - In opinion of Court, applicant
having exercised his option to seek
cancellation u/s 439 (2) Cr.P.C. before
Court of Sessions can't now approach High
Court by moving another bail cancellation
application u/s 439 (2) Cr.P.C - Thus,
order passed by Court of Sessions can be
challenged
before
High

Court
in
application u/s 482 Cr.P.C. (Para 15, 19)

Bail cancellation application dismissed. (E13)

List of Cases cited:

1. Himanshu Sharma Vs St. of M.P. reported in
2024 (4) SCC 222

2. Gurcharan Singh Vs St. (UT of Delhi) reported
in 1978 (1) SCC 118, (Para 16)