K.S. Ramachander Rao Vs. State of A.P. and anr. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - placing strong reliance on a. he placed strong reliance on rbf nidhi limited and anr. shah case (supra). 16. in ram chandra case (supra) it is clearly held that complaint filed through the power of attorney of a person aggrieved, tantamounts to filing of the complaint by the person aggrieved.g. biskhapathy, j.1. the accused in c.c. no. 2188 of 1999 on the file of the court of the xi metropolitan magistrate, secunderabad, filed criminal petition no. 2332 of 2002 to quash the proceedings against him under section 138 of negotiable instruments act, 1881 (the act), on the ground that the complaint against him, presented by the general power of attorney of the payee of the cheque issued by him, which was dishonoured, is not maintainable in view of s.p. sampathy v. smt. manju gupta, (db). when the said petition came up for hearing before one of us (c.y. somayajulu, j.), since powers of attorney act, 1882, and section 183 of contract act, 1872, recognizing the principle qui facit per alium facit per se were not considered while rendering the said decision, the matter was referred to a division bench for reconsideration of the ratio in that decision in view of those provisions, and directed the registry to post the case before an appropriate bench after obtaining orders from the hon'ble the chief justice. the hon'ble the chief justice referred the case to a full bench for its decision. that is how this case came before us.2. the question to be answered by this full bench is whether power of attorney of a payee or a holder in due course of a dishonoured cheque can institute a complaint under section 138 of the act, on behalf of the payee or the holder in due course of the dishonoured cheque.3. at our request, sri t. balireddy, senior advocate readily accepted to act as amicus curiae. we place on record our appreciation for the valuable assistance rendered by him.4. since section 142 of the act lays down that notwithstanding anything contained in cr.p.c. the court cannot take cognizance of an offence punishable under section 138 of the act except upon a complaint in writing made by the payee or the holder in due course of the dishonoured cheque, keeping in view section 5 cr.p.c., the division bench in s.p. sampathy case (supra) held that complaint filed by a power of attorney of a payee or a holder in due course is not maintainable, without taking into consideration section 2 of the powers of attorney act, 1882, and section 183 of the contract act.5. the contention of sri t. balireddy, learned senior counsel, is that in view of section 2 of the powers of attorney act, 1882, read with the ratio in ravula subbarao v. commr. of income tax, : [1956]30itr163(sc) , which approved the observation in jackson & co. v. napper: in re schmidts' trade-mark, (1886) 35 ch.d 162 at p.172(c), that every person who is sui juris has a right to appoint an agent for any purpose, except in cases where the act to be performed is personal in character, or is annexed to a public office, or an act involving fiduciary obligation, and since the act does not lay down that the payee or the holder in due course should 'personally' file the complaint, complaint filed by the payee or the holder in due course of a dishonoured cheque through his power of attorney is maintainable, more so because in ram chandra v. stale of bihar, : 1967crilj409 , the apex court held that prosecution launched at the instance of the power of attorney of 'a person aggrieved' tantamounts to institution of the complaint by the person aggrieved himself. he relied on hamsa v. ibrahim, 1997 company cases 800, ruby leather exports v. k. venu rep. vandana chemicals etc., 1994 (1) crimes 820 and anil g. shah v. i.j. chittranjan co., 1998 cri.lj 3870, where the kerala, madras and gujarat high courts took the view that a complaint filed by the power of attorney of a payee or holder in due course of a dishonoured cheque under section 138 of the act, is maintainable. he further contended that since in t.c. mathai v. district and sessions judge, thiruvananthapuram, kerala, : 1999crilj2092 , it is held that an accused, after obtaining permission from court, can appear through a power of attorney, there can be no impediment for the payee or the holder in due course of a dishonoured cheque filing the complaint under section 138 of the act through his power of attorney.6. the learned public prosecutor supported the view that the payee or holder in due course of a dishonoured cheque can file a complaint through his power of attorney.7. the contention of sri y.v. ravi prasad, learned counsel for the petitioner, is that since the provisions of a penal statute have to be construed strictly, he, relying on the observations in lachmi narain v. union of india, : [1976]2scr785 , reading--'if the provision is couched in prohibitive or negative language, it can rarely be directory; the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory.'contended that since section 142 of the act begins with a non-obstante clause, it is clear that the said provision is mandatory. placing strong reliance on a.k. roy v. state of punjab, : 1986crilj2037 , unique butyle tube industries (p) ltd. v. u.p. financial corporation, : [2002]supp5scr666 , asstt. commr. v. velliappa textiles ltd., : 2004crilj1221 , padma sundara rao v. state of t.n., 2002 (3) ald 12 (sc) = 2002 (2) scale 580, he contended that in view of casus omissus rule, question of adding any words to section 142 of the act, for interpreting that section to mean that their power of attorney also can file a complaint on their behalf cannot be resorted to. it is his contention that since as per section 200 cr.p.c. examination of the complainant in a private complaint is mandatory, and since 'complainant' does not mean the 'power of attorney of the complainant' it is clear that the legislative intent that the complaint should be presented only by the payee or the holder in due course of a dishonoured cheque, but not through the power of attorney, is clear and unambiguous. he placed strong reliance on rbf nidhi limited and anr. v. state of a.p., 2003 (1) ald (crl.) 152 (ap), where one among us (ch. s.r.k. prasad, j.) held that cognizance of a complaint under section 138 of the act cannot be taken unless it is signed by the payee, and he is examined under section 200 cr.p.c.8. the contention of the other learned counsel sri madala narasinga rao, appearing for the accused is that since as per section 60 of the evidence act, 1872, oral evidence must be direct and since the power of attorney cannot have personal knowledge of the facts, as his evidence would be in the nature of hearsay evidence, question of initiation of proceedings through a power of attorney does not arise. relying on a.k. gupta v. lloyds steel industries ltd., , it is contended that the complaint has to be signed by the payee or the holder in due course of a dishonoured cheque only but not by his power of attorney. the learned counsel for the complainants adopted the contentions of sri ball reddy, learned senior counsel.9. in view of the ratio in unique butyls tube industries (p) ltd case (supra), velliappa textiles ltd. case (supra) and padma sundara rao case (supra) relied on by the learned counsel for the petitioner, there can be no two opinions about the fact that the penal law should be strictly construed, and question of the court adding or deleting words in a penal statute while interpreting the section does not arise. but those decisions are of no help to decide the question referred to this bench, because the complaint in fact is filed by the payee (or the holder in due course) of the dishonoured cheque but was signed on his behalf and was presented into court by his power of attorney. as per the law of agency any act done by an agent for and on behalf of his principal would be deemed to be an act done by the principal himself and since in ravula subba rao case (supra) it is held that only in three circumstances a person cannot be permitted to be represented by an agent. so, the important point to be considered in this case is whether section 142 forbids or prohibits a power of attorney of a payee or the holder in due course of a dishonoured cheque instituting a complaint on behalf of his principal. if we strictly apply the principle enunciated in the above decisions and apply the observation in para-7 at page 608 of ravula subba rao case (supra) reading--'.........unless the statute itself enacts otherwise an application which a partner has to sign would be in order and valid if it is signed by his authorized agent.'since section 142 of the act does not state that the payee or the holder in due course of a dishonoured cheque should 'personally' file the complaint, the complaint under section 138 of the act can be presented through/by power of attorney agent of a payee or holder in due course of a dishonoured cheque, on their behalf.10. for understanding the language employed in section 142 of the act, sections 2(d), 190 and 200 cr.p.c. also have to be looked into. they read as follows:section 142 of the act reads:'notwithstanding anything contained in the code of criminal procedure, 1973,--(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138;(c) no court inferior to that of a metropolitan magistrate or a judicial magistrate of the first class shall try any offence punishable under section 138.'section 2(d) of cr.p.c., which defines a complaint reads:'any allegation made orally or in writing to a magistrate, with a view to his taking action under this code, that some person, whether known or unknown, has committed an offence, but does not include a police report.explanation.--a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint.'section 190 of cr.p.c. reads:'(1) subject to the provisions of this chapter, any magistrate of the first class, and any magistrate of the second class especially empowered in this behalf under subsection (2), may take cognizance of any offence--(a) upon receiving a complaint of facts which constitute such offence;(b) upon a police report of such facts;(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.(2) the chief judicial magistrate may empower any magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.section 200 cr.p.c. reads:examination of complainant.--a magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the magistrate :provided that, when the complaint is made in writing, the magistrate need not examine the complainant and the witnesses--(a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or(b) if the magistrate makes over the case for inquiry or trial to another magistrate under section 192:provided further that if the magistrate makes over the case to another magistrate under section 192 after examining the complainant and the witnesses, the latter magistrate need not re-examine them.from section 2(d) and section 190 of cr.p.c. it is clear that a 'complaint' to the magistrate need not necessarily be in writing. in other words it can be oral also. here it should be remembered that though victim of a crime may be an individual or individuals, any crime is treated as an offence against the society, and so in matters relating to reporting of crimes, normally, question of locus standi does not arise. in fact, in respect of certain offences, in view of section 39 cr.p.c. persons who have knowledge of either commission of, or the intention to commit the offences enumerated therein, have a duty to give information either to the police or to the magistrate about the same. otherwise, they would be committing an offence under section 202 ipc and significantly section 39 cr.p.c. casts the burden to prove his innocence on the accused. in respect of offences not enumerated in section 39 cr.p.c. also, person not aggrieved by those offences can give a report to police or magistrate, ofcourse subject to the limitations or exceptions prescribed in the cr.p.c. especially sections 195 - 199 cr.p.c. since issuance of a cheque by a person without adequate funds in his account is made an offence under section 138 of the act, had section 142 of the act not been there anybody could make a complaint about the said offence. obviously, with a view to see that none else except the payee or the holder in due course of the bounced cheque should present a complaint in writing for an offence under section 138 of the act, section 142 of the act seems to have been incorporated. in short, the intendment of section 142 of the act is that a person aggrieved only should file a written complaint for the offence under section 138 of the act.11. 'payee' is defined in section 7 of the act as:'the person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the 'payee'.'and 'holder in due course' is defined in section 9 of the act as:'holder in due course means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorse thereof, if payable to order, before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title'from the definitions of 'payee' and 'holder in due course' it is clear that the right to encash the cheque is not 'personal' in character vis-a-vis the drawer of the cheque. this assumes importance because, if the act to be performed is not 'personal in character', the person who has to perform the act can do it by delegation i.e., can get it done by his agent, in view of section 183 of the contract act read with section 2 of powers of attorney act, 1882. here it should be stated that even in cases relating to offences under sections 497 and 498 ipc, which can be termed as offences 'personal in character' with reference to the husband of the adulteress, section 198 cr.p.c., which mandates that a husband only shall be deemed to be aggrieved by the offences under that section and permits him only to make the complaint, makes an exception and lays down that in the absence of the husband, the person who had the care of the woman on his behalf, at the time when the offence was committed can, with the leave of the court, make the complaint. therefore, it is clear that a complaint in a criminal case need not necessarily be filed by a 'person aggrieved by the offence', unless the statute says so.12. here it is pertinent to keep in view that the act is amended by the negotiable instruments (amendment and miscellaneous provisions) act, 2002, as per which the court is empowered to try the offences under section 138 of the act summarily and sections 143 - 147 are introduced into the act.section 145 of the act reads:'(1) notwithstanding anything contained in the code of criminal procedure, 1973, (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said code.(2) the court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.'section 146 of the act reads:'the court shall, in respect of every proceeding under this chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.'para-4(iv) of the statement of objects and reasons to the negotiable instruments (amendment and miscellaneous provisions) act, 2002, reads:'prescribe procedure for dispensing with preliminary evidence of the complainant.'from the above amendments to the act, it is clear that the procedure for trial of an offence under section 138 of the act is simplified.13. in bhaskar industries ltd. v. bhiwani denim & apparels ltd. and ors., 2001 (2) ald (crl.) 530 (sc) = 2001 (6) supreme 339, the apex court held that a magistrate in a summons case, can dispense with the personal attendance of an accused either throughout or at any particular stage of the proceedings, after taking an undertaking from him that he would not dispute his identity and that the counsel on his behalf would be present in court and that he would have no objection for taking evidence in his absence. so, it is clear that the court can dispense with the personal attendance of an accused, in cases filed under section 138 of the act, in appropriate cases. in view of the proviso to sub-section (1) of section 313 cr.p.c., court can dispense with the examination of the accused under section 313 cr.p.c. in a summons case, when it dispensed with the personal appearance of the accused also. so, it is clear that in appropriate cases the court can permit the accused to be represented by an advocate i.e., his agent.14. 'complainant' is not defined either in the cr.p.c. or in the general clauses act. therefore, for the purpose of section 200 cr.p.c. 'complainant' should be taken to mean a person who presents the complaint to the court or who makes the complaint to the court. that that should be so would be clear from the fact that if a company or other juristic person gives the complaint, it cannot be examined. somebody on its behalf who can speak about the facts of the case would be examined when he presents the complaint on behalf of a juristic person. the same analogy applies to a power of attorney also. if the complainant himself is able to come to court and present the complaint in person, why should be or where is the need or necessity for him to file the complaint through his power of attorney? in fact, in nirmaljit singh hoon v. state of west bengal, : [1973]2scr66 , it is held that the object of examination of the complainant under section 200 cr.p.c. is to ascertain if there is prima facie case and sufficient grounds for proceeding against the accused. so, the power of attorney who presented the complaint on behalf of the 'payee' or the 'holder in due course' of a dishonoured cheque can be examined on behalf of the complainant to find out if there is prima fade case against the accused. in view of section 139 read with 146 of the act for finding out prima facie case against the accused, the only other requirement would be about the issuance of statutory notice under section 138(b) of the act to the accused, which also would be evidenced by documents. in view of the above, section 60 of evidence act is of no help in deciding the point for consideration. similarly,' a.k. gupta case (supra) has no relevance for deciding this point.15. a.k. roy case (supra) relied on by sri y. v. ravi prasad was in fact considered in extenso in m/s. ruby leather exports case (supra) and it was held that that decision has no relevance for deciding the question whether the power of attorney of a payee or holder in due course of a dishonoured cheque can file the complaint under section 138 of the act and held that a power of attorney of a payee or holder in due course of a dishonoured cheque can file a complaint under section 138 of the act. we are in complete agreement with the view taken in m/s. ruby leather exports case (supra), and the decisions of other high courts in hamsa case (supra) and anil g. shah case (supra).16. in ram chandra case (supra) it is clearly held that complaint filed through the power of attorney of a person aggrieved, tantamounts to filing of the complaint by the person aggrieved. for that reason, and since the right accrued to the payee or the holder in due course of a disohonoured cheque does not fall within the three exceptions to the rule qui facit per alium facit per se recognized by section 183 of the contract act i.e., since the act to be performed (i) is not personal in its character, or (ii) is not annexed to any public office, and (iii) does not involve any fiduciary obligations, we hold that the power of attorney of a payee or a holder in due course of a dishonoured cheque can file a complaint for an offence under section 138 of the act after obtaining permission from the court, either before or after filing of the complaint. the reference is answered accordingly.17. in view thereof, the decision in s.p. sampathy case (supra) stands overruled.18. post the criminal petitions before the concerned court for disposal according to law.