Case Note & Summary
The appellant, M/s. Alhind Tours and Travels Private Limited, filed a criminal appeal under Section 378(4) of the Code of Criminal Procedure, 1973, against the judgment and order dated 16.8.2012 passed by the Judicial Magistrate First Class, Mangalore, in C.C.No.2647/2008, which acquitted the respondent, Sri. Hasan Addoor, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The complainant company had instituted proceedings against the respondent for dishonour of a cheque. The complainant was represented by its Assistant Sales Manager and Power of Attorney holder, Sri Ashley Danian Fernandez, who had been duly authorized by a Board resolution. The Power of Attorney holder presented the complaint and tendered evidence on behalf of the company. The respondent did not seriously contest the proceedings but raised a contention that the Power of Attorney holder could not tender evidence without leave of the court. The trial court accepted this contention and acquitted the accused, holding that while the Power of Attorney holder was competent to present the complaint, he ought to have sought permission under Section 302 CrPC to tender evidence. The High Court, in appeal, examined the scope of Section 302 CrPC and held that it applies only to private persons and not to companies or their authorized representatives. The court noted that the Power of Attorney holder was an employee of the company and was duly authorized by a Board resolution. Therefore, he was competent to present the complaint and tender evidence without seeking permission under Section 302 CrPC. The High Court set aside the acquittal and remanded the case to the trial court for fresh disposal in accordance with law, directing the trial court to proceed from the stage of evidence of the complainant.
Headnote
A) Criminal Procedure - Power of Attorney Holder - Section 302 CrPC - Section 138 Negotiable Instruments Act, 1881 - The trial court acquitted the accused on the ground that the Power of Attorney holder of the complainant company ought to have sought permission under Section 302 CrPC to tender evidence. The High Court held that Section 302 CrPC applies only to private persons and not to companies or their authorized representatives. The Power of Attorney holder, being an employee and authorized representative, was competent to present the complaint and tender evidence without such permission. The acquittal was set aside and the case remanded for fresh disposal. (Paras 2-4)
Issue of Consideration
Whether a Power of Attorney holder of a complainant company is required to seek permission of the court under Section 302 of the Code of Criminal Procedure, 1973, to tender evidence on behalf of the company in a prosecution under Section 138 of the Negotiable Instruments Act, 1881.
Final Decision
The appeal is allowed. The judgment and order of acquittal dated 16.8.2012 passed by the Judicial Magistrate First Class, Mangalore, in C.C.No.2647/2008 is set aside. The case is remanded to the trial court for fresh disposal in accordance with law. The trial court is directed to proceed from the stage of evidence of the complainant.
Law Points
- Power of Attorney holder can present complaint and tender evidence in Section 138 NI Act proceedings without seeking permission under Section 302 CrPC
- Section 302 CrPC applies only to private persons
- not to companies or their authorized representatives
