ARBEE INTERNATIONAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appellant was the complainant in case No. C- 747/03 under section 138 of NI Act before the learned Metropolitan Magistrate, 11th Court, Calcutta. The accused was the respondent No. 21 herein. Learned Magistrate examined the accused under section 251 of Cr. PC, recorded the evidence of the witnesses, examined the accused under section 313 of Cr. PC and then passed an order dismissing the complaint and acquitting the accused only on the ground that P.W. 1 filed the complaint on behalf of the complainant on the strength of letter of authority did not depose in the case and moreover did not sign the petition of complaint and P.W.1 cannot be said to be the authorized person to depose on behalf of the complainant. The learned Magistrate in support of his reasoning relied on decision of this Court in Prasanta Kr. Basu vs. Narandra Kr. Anchalia & Anr., reported in 2007(1) C.Cr. LR (Cal) 136. There the learned Single Judge of this Court held that no permission of the Court was obtained by the proprietor to have his complaint filed through his agent. Learned Single Judge referred to a judgment of the Andhra Pradesh High Court (2006) DCR 229 where, it was held that power of attorney holder of a payee or a holder in due course, can file complaint only after obtaining permission of the Court either before or after filing of the complaint. The learned Single Judge further referred to a decision of the Madras High Court reported in 2005(2) DCR 439. On the strength of the decisions, the learned Magistrate observed that since the petition of complaint was filed without any permission of the Court, it is incompetent and not maintainable.

(2.) Mr. Ayan Bhattacharyya, learned Advocate appearing for the appellant referred to the decision in Shankar Finance & Investments vs. State of A.P. & Ors., reported in 2008(3) E Cr. N (SC) 390, where Their Lordships of the Supreme Court at para 9 of the judgment held that attorney holder is the agent of the grantor and if authorized by the grantor, he can initiate legal proceedings. The view of the Andhra Pradesh High Court that power of attorney holder can not file complaint, was not approved of. Their Lordships of the Supreme Court further observed at para 10 of the judgment as follows:

(3.) Now it is submitted by Mr. Bhattacharyya that the case of Prasanta Kumar Basu which was decided by the Single Judge of this Court has been taken to Supreme Court in appeal which is said to be pending. This Court as early as in 1993 decided this point in the line of the Supreme Court decision as we find in Shankar Finance. This was Sk. Abdur Rahim & Anr. vs. Amal Kumar Banerjee & Anr., reported in 1993 C Cr. LR (Cal) 225, where a learned Judge of this Court with the aid of the decision of the Supreme Court in AIR 1956 SC 604, held that power-of-attorney holder has the authority to file complaint on behalf of the principal and there is nothing in section 142 of the NI Act which can be taken to have abrogated the general right of a person to authorize his agent to make the complaint on his behalf under the said section. Now the old decision of the Supreme Court is Ravulu Subba Rao & Ors. vs. Commr. of Income-tax, Madras, reported in AIR 1956 SC 604, which has been followed by the Single Judge of this Court in Sk. Abdur Rahim. Further Shankar Finance refers to another judgment of the Supreme Court in Ram Chandra Prasad Sharma & Ors. vs. State of Bihar & Anr., reported in AIR 1967 SC 349, where Their Lordships of the Supreme Court has said that a power-of-attorney holder can file complaint on behalf of the principal.