R Trivedi (advocate.dma@gmail.com) 16 January 2012

Substitution of complainant

I have come across a case (S.138) which has taken quite an unpredicatble stand: the facts of case are:

1. Case is filed on behalf of properitorship firm under a simple authority letter to its employee.

2. This employee submitted his affidavit as 'Complainant Affidavit". His examination in chief over.

3. After few dates: another employee submits his affidavit, almost same with some material improvement again stating as "Complainant affidavit". His examination in chief over. He attaches an SPA also. SPA not notarised.

4. No permission, no application for substitution taken from court. It is just stated in the second affidavit that the first employee resigned from the firm.

5. This second person name is not there in the list of witness also.

It looked to me that no one noticed this substitution, everyone took it for granted.

There are around 5-6 (nothing of importance) dates after this substitution, before it was brought to my notice. The next date was fixed for complainant cross examination. I advised first to file an application u/s 256 for dismissal on account of absence of complainant. The complainant side took date for filing the reply. Can anything better be done to get the case quashed at the earliest. Please give your views.

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17 Replies

Shonee Kapoor (Legal Evangelist - TRIPAKSHA) 18 January 2012

It can be done, SPA can be filed subsequently as well.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

R Trivedi (advocate.dma@gmail.com) 19 January 2012

Anu more views please.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE ) 21 January 2012

Fight it out , complainant can not be replaced.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA) 23 January 2012

Here the complainant is the company, so SPA can change.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE ) 23 January 2012

any law Mr Shonee.

R Trivedi (advocate.dma@gmail.com) 23 January 2012

There is a clear order from Supreme Court which allows the GPA holedr in case of Prop firm to file the case (Shankar Investment....). The point is can this original authorised person be substituted at a later date without the leave of the court. In the stated case for 5 dates this substitute came (nothing much happened on those dates except further date). He filed the affidavit (heading Complainant affidavit same as original affidavit with some change) and the SPA. So it seems that complainant was absent for these 5 days as this substitute had no permission from the court. So the question of the law is:

1. Can prop firm substitute a new complainant ? (In case of company it is valid)

2. Can this new substitute proceed without the leave of the court ?

3. If at a later stage it is found out that this substitute is without leave of the court, can S.256 (dismissal in absence of complainant) works out ?

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE ) 23 January 2012

filing case and substitution is different matters.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE ) 23 January 2012

Mr trivedi here is important portion of the SC citation refered by you.

In a case of this nature, where the “payee” is a company or a

sole proprietary concern, such issue cannot be adjudicated upon taking

any guidance from Section 142 of the Act 1881 but the case shall be

governed by the general law i.e. the Companies Act 1956 or by civil

law where an individual carries on business in the name or style other

than his own name. In such a situation, he can sue in his own name

and not in trading name, though others can sue him in the trading

name. So far as Section 142 is concerned, a complaint shall be

maintainable in the name of the “payee”, proprietary concern itself or

in the name of the proprietor of the said concern.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE ) 23 January 2012

the court has further added in shakar finance citation decison ot earlier citation as below=

"Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In

our view the word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to in respect of "acts" done

by them power-of-attorney holder in exercise of power granted by the instrument. The term "acts" would not

include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has

rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such

acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he

cannot depose for the principal in respect of the matter of which only the principal can have a personal

knowledge and in respect of which the principal is entitled to be cross-examined."

THIS IS THE CENTREL THEME.

R Trivedi (advocate.dma@gmail.com) 23 January 2012

JSDN,

Thanks, there is another order (albeit Civil but applicable)

Man Kaur(Dead)By Lrs. Vs. Hartar Singh Sangha on 5 October, 2010

This order gives good guidelines for POA in case of prop firms, but I could not see any workable citation on substitution of authority holder with another authority holder in case of prop firm. Plane reading of these two orders (Shankar Finace and above) gives an idea that the case is as good as finished for complainant, but I want to understand the fate of application under S.256.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE ) 24 January 2012

Pl either post the citation or give more details to get it from relevant site.

R Trivedi (advocate.dma@gmail.com) 24 January 2012

Please use following link:

https://indiankanoon.org/doc/1897611/

Shonee Kapoor (Legal Evangelist - TRIPAKSHA) 25 January 2012

Now JSDN,

One doesnot require such elaborate citations. I would give you an example.

A is a GPA holder B. A initiates a case on behalf of B. A dies soon after, now that does not mean that the case can not proceed any further.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE ) 30 January 2012

A similar problem has been posted on defferent thread on this site where even HC has rejected substitution. I have requested him to post the HC order.