R.N.Sinha, Propreitor Himalaya Overseas v. Nisha Jagtiani

S.MURALIDHAR, J APRIL 9, 2009 "dg"

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C. 670/2008 & CRL.M.A. 2540/2008 Reserved on : 12th March 2009 Decision on : 9th April, 2009 R.N. SINHA, PROPRIETOR HIMALAYA OVERSEAS.... Petitioner Through Mr. D.N. Goburdhun with Ms. Aakanksha, Advocates versus NISHA JAGTIANI ..... Respondent Through Mr. Vijay Aggarwal, Mr. Gurpreet Singh, Advocates CORAM: HON'BLE DR. JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in Digest? Dr. S. Muralidhar, J. 1. This petition, under Section 482 of the Code of Criminal Procedure (Cr.P.C.), seeks the quashing of an order dated 10.8.2007 passed by the learned Metropolitan Magistrate (MM), New Delhi directing notice to issue to the petitioner under Section 251 Cr.P.C. 2. The aforementioned order was passed by the learned MM in a complaint case titled "Nisha Jagtiani vs. R.N. Sinha" under Section 138 of the Negotiable Instruments Act, 1881 (NI Act). The said complaint was filed in respect of the dishonour of three cheques of Rs. 1 lakh each dated 10th, 15th and 19th March, 2005 respectively issued by the petitioner R.N. Sinha as proprietor Himalaya Overseas in favour of the complaint M/s. Ganga Textiles represented by its proprietor Nisha Jagtiani. 3. The cause title of the complaint reflected that the complainant was being represented by Sh. K.K. Bhatnagar, Special Power of Attorney (SPA). In para 1 of the complaint, it was stated that "complainant has duly authorized Sh. K.K. Bhatnagar to present this case and SPA executed in his favour is enclosed herewith" 4. The trial court record reflects that the said complaint was filed on 3.10.2005. It was dated 30.9.2005 and signed by the power of attorney (POA) holder and not by the complainant. It was accompanied by an affidavit by way of evidence dated 30.9.2005 of the power of attorney holder of the complainant. The copy of the power of attorney dated 29.9.2005 was also enclosed. 5. By an order dated 3.10.2005, the learned MM recorded that the pre- summoning evidence by way of an affidavit was led and closed. Arguments on summoning were heard. Cognizance was taken of the offence under Section 138 NI Act and summons was issued to the petitioner accused for 19.5.2006. 6. By an order dated 30.5.2007, the learned MM directed the counsel for the complainant to ensure the presence of the complainant on the next date of hearing i.e. 30.6.2007. 7. On 30.6.2007, the learned MM passed the following order: "30/06/07 Pr: AR with Counsel. Accused on bail with counsel Heard. File perused. On the last date of hearing counsel for the complainant was directed to ensure the presence of the complainant in person inasmuch as the special power of attorney executed by the complainant in favour of the AR is containing the vague contents. The perusal of the SPA reveals that the AR to is appearing on behalf of the complainant has not been duly authorised to file the present complaint. An exemption application on behalf of the complainant filed stated therein that the personal appearance of the complainant is no more required. Having heard the argument advance by the counsel for the parties and as per the provisions of law the court can summon any person if the court thinks that the presence of such person is required for the adjudication of any case. This is the complaint case u/s 138 N.I. Act and the SPA executed by the complainant in favour of his attorney has no meaning in the eyes of law. Inasmuch as it is no where mentioned in the said SPA that the complainant has authorised any representatives to file the present complaint case u/s 138 NIA. Therefore as per provisions of law and in the interest of justice and for the just decision of the present case the personal appearance of the complainant is required. Therefore, adjourned for 10.08.2005 for appearance of the complainant in person." 8. On the next date of hearing i.e. 10.8.2007, the le