ADESH SANIT Vs. PRAMOD BHATNAGAR

JUDGEMENT

(1.) THIS revision petition has been filed by the complainant Adesh Saint, against the order dated August 17, 2002 of Additional Sessions Judge No. 4, Kota whereby revision No. 33 of 2002 was allowed and rejected the application under Section 138 of the Negotiable Instrument Act and the order dated January 31, 2002 of Additional Chief Judicial Magistrate No. 2, Kota was set aside.

(2.) BRIEF facts of the case are that a complaint under Section 138 of the Negotiable Instrument Act was filed in the Court of Additional Chief Judicial Magistrate No. 2, Kota by the petitioner Adesh Saint through power of attorney holder Smt. Shanti Saint, his mother, against the respondent Dr. Pramod Bhatnagar stating that the respondent has taken an amount of Rs. 50,000/- as loan from the petitioner and against this a cheque was given to the petitioner by Pramod Bhatnagar on August 12, 1999. The petitioner submitted the cheque in the concerned Bank and the same was bounced and returned with endorsement that "Account is closed". On this complaint the trial Court to recorded the statement of power of attorney holder of the petitioner and passed the cognizance order on September 29, 2000 for the offence under Section 138 of the Negotiable Instrument Act. After one year of passing of the order taking cognizance the non-petitioner moved an application before the trial Court stating therein that as the cheque was returned with the endorsement of "account closed" it does not come in the purview of the provisions of Section 138 of the negotiable Instrument Act and the cognizance order dated September 29, 2000 may be set aside. This application was rejected by the trial Court on merits on January 31, 2002. Against the order dated January 31, 2002 the respondent preferred a criminal revision before the Court of Sessions with the prayer for setting aside the cognizance order and the dismissing the complaint. The revision petition was allowed by the order dated August 17, 2002 and the revision Court dismissed the complaint filed by the petitioner under Section 138 of the Negotiable Instrument Act. Hence, this revision petition has been filed.

(3.) MR . Rohan Jain, the learned counsel for the petitioner contended that the trial Court was justified in taking cognizance against the non-petitioner on the complaint filed by the petitioner under Section 138 of the Negotiable Instrument Act and the order of the revisional Court dated August 17, 2002 deserves to be quashed and set aside. The revisional Court dismissed the complaint of the petitioner only on the ground that the complaint was filed by the power of attorney of the petitioner and according to Section 142 of the Negotiable Instrument Act by payee on holder on the cheque can file the complaint. But the revisional Court wrongly interpreted the law and passed the order basing on wrong findings. It is well settled law that every person who is 'Sui Juris' has a right to appoint an agent for any purpose whatever and that he can do so where he is exercising a statutory right and not less than when he is exercising any other right. The word agent has been defined in Section 182 of the Indian Contract Act as a person employed to do any act for another or to represent another in dealing with the third person the person for, whom such act is done or who is so represented is called the principal. He has placed reliance on Janki Vashdeo Bhojwanai and another v. Indusind Bank Ltd. and others, 2005 (1) RCR (Civil) 240 : (AIR 2005 SC 439) and Shankar Finance and Investments v. State of Andhra Pradesh and others, 2008 (3) RCR (Criminal) 885 : 2008 (4) RAJ 630 : (2008) 8 SCC 536, Anirudhan v. Philip Jacob, 2006 (4) RCR (Criminal) 382 : (2007 (1) Crimes 558 and M/s. G.J. Packaging Private Ltd., and another v. M/s. S.S. Sales and another, 2006(2) RCR(Criminal) 34 : 2006(1) RCR(Civil) 722 : (2006(2) Crimes 270).