(Querist) 27 October 2009
This query is : Resolved
Respected Seniors and Experts.
I am appearing for an accused in a trial under Negotiable Instruments Act.
The Complainant being a proprietorship firm is represented through its power of attorney holder.
In the cross examination the power of attorney holder has admitted that
(a) the instrument (Power of Attorney) was not filed along with the complaint. In otherwords while taking cognizance of the offence, the Magistrate has not seen the power of attorney.
(b) admittedly the name of the proprietor has not been disclosed in the complaint.
(c) He has admitted that he is not authorised under the power of attorney to undertake business activities. He has further admitted that he does not have the knowledge about the business transactions.
With the above admissions of the complainant should I file a petition before the High Court under Section 482 Cr.P.C to quash the criminal proceeding on the ground that continuance of the proceeding will be abuse of process of law.
Raj Kumar Makkad
(Expert) 27 October 2009
I think rather going before High Court under section 482 and wasting time there, it will be appropriate if u contest the case vigorously as u have done while making cross-examination of complainant. I think, the case shall definitely shall be decided in ur favour in the v=given circumstances so why to lose credit?
adv. rajeev ( rajoo )
(Expert) 28 October 2009
PA holder is not authorised to depose in NI Act cases.
Ur cross examinatin is good, u have got whatever u wanted to get. go ahed, u will get success.
Vinod Singh Tomar
(Expert) 28 October 2009
Power of attorney holder has no right whatsoever to file the affidavit. His statement can be recorded only for verification purpose but can not depose for and on behalf of complainant. Moreover, he has already admitted that he has no knowledge of business transaction between the absent complainant and accused.At the most he (PAH) can be a witness on behalf of complainant.
On the point of powers of PAH please refer Shanaz D"Souza V/S Sheikh Ameer Saheeb and another reported in 2007 (3) Mh. L.J.324. The PAH has to prove liability/ debt under the N.I. Act and he has no knowledge about the business transactions with the accused, therefore the cheque in dispute is without consideration. Please fight with your heart and defend the accused. I am sure he will be acquitted.
(Expert) 29 October 2009
we never know which other witness would be introduced by the complainant next to lend buttress his case. therefore it will not be appropriate for u to jump to the hc. the court will be shy in allowing your petition as by doing so it will deny the right of fair trial to the complainant.
(Querist) 09 November 2009
Many thanks for your valuable suggestions. I am highly obliged.