RIFAKAT ALI CHOUDHARY Vs. STATE OF RAJASHAN

JUDGEMENT

(1.) These two miscellaneous petitions have been filed by the petitioner seeking quashing of the proceedings of the two complaints No. 6882007 (Cr. Case No. 195/2008) and 689/2007 (Cr. Case No. 196/2008) pending in the Court of Addl. Chief Judicial Magistrate (C.B.I. Cases) Jodhpur filed by the respondent No. 2 against the petitioner for the offence under Section 138 of the Negotiable Instruments Act as well as the order dated 3.3.2008 whereby cognizance for the said offence has been taken against him. The learned counsel for the petitioner contended that in this case the proceedings of the complaints filed by the respondent No. 2 are absolutely illegal and deserve to be quashed for the reason that the complaint has been filed on behalf of proprietorship firm named Dimple Impex but the proprietor of the firm has not filed the complaint. He submits that the complaint has been filed by the power of attorney holder Kalu Chand Jain and not by the proprietor of the firm and thus the same is liable to be quashed. He submitted that Kalu Chand Jain in the affidavit filed in support of the complaint has not mentioned any grounds or facts as to how he was aware about the day to day functioning of the firm so as to swear the affidavit on behalf of the firm. He, therefore, prayed that the proceeding of the complaint are liable to be quashed. Learned counsel in support of his contentions relied upon a decision of the Apex Court in the case of M/s. Shankar Finance vs. State of Andhra Pradesh & Ors, 2009 AIR(SC) 422 and prayed that the proceedings of the complaints should be quashed.

(2.) After considering the arguments advanced at the bar and after perusing the complaints impugned as well as the affidavits which have been filed in support of the complaint, it is apparent that the affidavits have been sworn by Kalu Chand Jain, the husband of Smt. Rinku Jain the proprietor of the firm Dimple Impex in his capacity as the power of attorney holder authorised by the proprietor. In his affidavit Kalu Chand Jain has clearly mentioned that Rinku Jain the proprietor of the firm has authorised him through the validly executed power of attorney to conduct all sorts of legal proceedings on behalf of the firm. So far as the issue to whether Kalu Chand Jain was aware about the day to day functioning of the firm is concerned, the said aspect can only be assessed when the aforesaid Kalu Chand Jain is examined and cross examined at the trial. That apart, the proceedings of the complaints have been challenged at the threshold i.e. at the stage of cognizance. There is no restriction for the complainant herself to be examined when the trial of the case proceeds. Therefore, the complaint as well as the order taking cognizance can neither be said to be illegal nor an abuse of the process of the. Court. The judgment of the Apex Court in the case of M/s. Shankar Finance which has been relied by the learned counsel for the petitioner runs contrary to the proposition advanced by the learned counsel seeking quashing of the proceedings of the complaints. The Apex Court has rather approved the deposition of the power of attorney holder on behalf of the actual complainant. The Hon'ble Apex Court has observed as below:-

(3.) The observations made by the Apex Court clearly lay down that where the Attorney holder of the complainant is in charge of the business of the payee-complainant firm and the Attorney holder alone is personally aware of the transactions, and the complaint is signed by the Attorney holder on behalf of the firm payee-complainant, there is no reason as to why the Attorney holder cannot be examined as the complainant. In view of the aforesaid observations made by the Hon'ble Apex Court in the case of M/s. Shankar Finance , the contentions raised by the learned counsel for the petitioner seeking quashing of the complaint are not worthy of acceptance for quashing the complaint at the threshold. Accordingly, the miscellaneous petitions being bereft of any force are hereby rejected. The stay applications are also rejected.