Special poa in criminal proceedings
Bhaskar Kartha
(Querist) 09 March 2012
This query is : Resolved
Whether a Special POA executed on Rs. 50.00 stamp paper in kerala but not notarised, filed a complaint u/s 138 NI act, was taken on file and proceeded. But the defence has now questioned the POA as such during the hearing. Is there any citation to put up our stance?
ajay sethi
(Expert) 09 March 2012
power of attorneyhas to be affirmed before a notary public . how was it taken on record by court.
Bhaskar Kartha
(Querist) 09 March 2012
The POA was filed alongwith the original complaint to the court
ajay sethi
(Expert) 09 March 2012
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 1449 of 2003
Decided On: 26.06.2008
Appellants: Shankar Finance and Investments
Vs.
Respondent: State of Andhra Pradesh and Ors.
Hon'ble Judges: R.V. Raveendran and P. Sathasivam, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: L. Roshmani, Adv. for P.S.N. & Co
For Respondents/Defendant: Prabhakar Rao Voruganti, D. Bharathi Reddy and M.K. Michael, Advs.
Subject: Criminal
Acts/Rules/Orders:
Negotiable Instruments Act, 1881 - Sections 138 and 142; Criminal Procedure Code (CrPC) - Sections 190, 200 and
482; Indian Electricity Act, 1910 - Section 50; Companies Act, 1956; Civil Procedure Code (CPC) - Order 3, Rules 1
and 2
Cases Referred:
MMTC Ltd. v. MEDCHL Chemicals & Pharma (P) Ltd. MANU/SC/0728/2001; Vishwa Mitter v. O.P. Poddar
MANU/SC/0378/1983; Associated Cement Co. Ltd. v. Keshvanand MANU/SC/0894/1998; Ram Chander Prasad
Sharma v. State of Bihar and Anr. MANU/SC/0280/1966; Nirmaljit Singh Hoon v. State of West Bengal
MANU/SC/0196/1972; Janki Vashdeo Bhojwani v. Indusind Bank Ltd. MANU/SC/1030/2004
Prior History:
From the Judgment and Order dated 21.8.2002 of the High Court of Judicature Andhra Pradesh at Hyderabad in Crl.
Appeal No. 1737 of 2001
Disposition:
Appeal allowed
Citing Reference:
MMTC Ltd. v. MEDCHL Chemicals & Pharma (P) Ltd. Discussed
Vishwa Mitter v. O.P. Poddar MANU/SC/0378/1983 Discussed
Associated Cement Co. Ltd. v. Keshvanand Discussed
Ram Chander Prasad Sharma v. State of Bihar and Anr. Discussed
Nirmaljit Singh Hoon v. State of West Bengal MANU/SC/0196/1972 Mentioned
Janki Vashdeo Bhojwani v. Indusind Bank Ltd. MANU/SC/1030/2004 Discussed
Case Note:
Criminal – Complaint under Section 138 of Negotiable Instruments Act, 1881 – Complaint signed by Power of
Attorney holder – Whether maintainable - Held, Section 142 of Negotiable Instruments Act provides that a
complaint under Section 138 can be made by the payee or the holder in due course of the cheque dishonored
– The only eligibility criteria prescribed by Section 142 is that the complaint must be by the payee or the
holder in due course – Therefore, in a criminal complaint relating to an offence under Section 138 of the Act,
it is permissible to lodge the complaint in the name of the proprietary concern itself.
1
ORDER
R.V. Raveendran, J.
1. The complainant in a proceedings under Section 138 of the Negotiable Instruments Act, 1881 (`Act' for short),
challenges in this appeal by special leave, the order dated 21.8.2002 passed by the Andhra Pradesh High Court in
Criminal Petition No.1737 of 2001 holding that the complaint signed by a Power of Attorney holder was not
maintainable.
2. The appellant - complainant filed a complaint dated 2.4.1996 against respondents 2 to 4 herein (namely M/s
Speciality Aqua Ventures Ltd, its Managing Director and Chairman arrayed as accused 1, 2 and 3) alleging that a
cheque for Rs.12,40,000/- issued by the third respondent (on behalf of respondents 2 to 4) was dishonoured.
Respondents 2 and 4 filed an application seeking discharge. The said petition was dismissed by the learned
Magistrate by order dated 17.12.1998. The Revision filed by them against the order of the learned Magistrate was
rejected by the Sessions Court on 12.2.2001. Thereafter, the fourth respondent herein (third accused) filed a petition
under Section 482 Cr.PC for quashing the proceedings. The fourth respondent contended that he could not be
arrayed as an accused as the cheque was issued by the third respondent in his individual capacity. The High Court
allowed the said petition on a different ground, by order dated 21.8.2002, and quashed the complaint as against the
fourth respondent. It held that the complaint was not signed by the payee, that is, the sole proprietor of the payee
concern, but was signed by his Power of Attorney Holder and that was not permissible.
3. The said order of the High Court is challenged in this appeal by special leave. By interim orders dated 28.11.2003
and 2.4.2004, this Court stayed the operation of the order of the learned Single Judge and directed that the case
should be proceeded with.
4. The question that arises for our consideration is whether the complaint under Section 138 of the Act signed by a
Attorney holder is not maintainable.
5. Section 190 of Code of Criminal Procedure (`Code' for short) enables a Magistrate to take cognizance of an
offence upon receiving a complaint of facts which constitutes such offence. Section 200 of the Code requires the
Magistrate taking cognizance of an offence on complaint, to examine upon oath the complainant and the witness
present, if any. Section 142 of the Act provides that notwithstanding anything contained in the Code, no Court shall
take cognizance of any offence punishable under Section 138 of the Act except upon a complaint, in writing, made by
the payee or, as the case may be, the holder in due course of the cheque.
6. In MMTC Ltd. v. MEDCHL Chemicals & Pharma (P) Ltd. MANU/SC/0728/2001 : 2002CriLJ266 , a complaint was
filed by MMTC Ltd. through the Manager of its Regional Office. Subsequently, the Manager was substituted by Dy.
General Manager who was duly authorized. The High Court held that the complaint was not maintainable as it was
signed and presented by a person, who was neither an authorized agent nor a person empowered under the articles
of association or by any resolution of the Board to do so. It held that only the Executive Director of MMTC Ltd had the
authority to institute legal proceedings. Reversing the said decision, this Court held :
In our view the reasoning given above cannot be sustained. Section 142 of the Negotiable Instruments Act provides
that a complaint under Section 138 can be made by the payee or the holder in due course of the said cheque. The
two complaints, in question, are by the appellant company who is the payee of the two cheques.
This Court has as far back as in the case of Vishwa Mitter v. O.P. Poddar MANU/SC/0378/1983 : 1984CriLJ1 , held
that it is clear that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence
before a Magistrate entitled to take cognizance. It has been held that no court can decline to take cognizance on the
sole ground that the complainant was not competent to file the complaint. It has been held that if any special statute
prescribes offences and makes any special provision for taking cognizance of such offences under the statute, then
the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion
prescribed by the Statute. In the present case, the only eligibility criteria prescribed by Section 142 is that the
complaint must be by the payee or the holder in due course. This criteria is satisfied as the complaint is in the name
and on behalf of the appellant company.
(Emphasis supplied)
2Referring to the decision in Associated Cement Co. Ltd. v. Keshvanand MANU/SC/0894/1998 : 1998CriLJ856 , this
Court held :
It has further been held that no Magistrate shall insist that the particular person, whose statement was taken on oath
at the first instance, alone can continue to represent the company till the end of the proceedings. It has been held that
there may be occasions when different persons can represent the company. It has been held that it is open to the de
jure complainant company to seek permission of the court for sending any other person to represent the company in
the court. Thus, even presuming that initially there was no authority, still the company can, at any stage, rectify that
defect. At a subsequent stage the company can send a person who is competent to represent the company. The
complaints could thus not have been quashed on this ground.
7. The payee of the cheque is M/s Shankar Finance & Investments. The complaint is filed by "M/s Shankar Finance &
Investments, a proprietary concern of Sri Atmakuri Sankara Rao, represented by its power of Attorney Holder Sri
Thamada Satyanarayana". It is therefore evident that the complaint is in the name of and on behalf of the payee.
Section 142(a) of the Act requires that no Court shall take cognizance of any offence punishable under Section 138
except upon a complaint made in writing by the payee. Thus the two requirements are that (a) the complaint should
be made in writing (in contradistinction from an oral complaint); and (b) the complainant should be the payee (or the
holder in due course, where the payee has endorsed the cheque in favour of someone else). The payee, as noticed
above, is M/s Shankar Finance & Investments. Once the complaint is in the name of the `payee' and is in writing, the
requirements of Section 142 are fulfilled. Who should represent the payee where the payee is a company, or how the
payee should be represented where payee is a sole proprietary concern, is not a matter that is governed by Section
142, but by the general law.
8. As contrasted from a company incorporated under the Companies Act, 1956 which is a legal entity distinct from its
shareholders, a proprietary concern is not a legal entity distinct from its proprietor. A proprietary concern is nothing
but an individual trading under a trade name. In civil law where an individual carries on business in a name or style
other than his own name, he cannot sue in the trading name but must sue in his own name, though others can sue
him in the trading name. Therefore, if the appellant in this case had to file a civil suit, the proper description of plaintiff
should be "Atmakuri Sankara Rao carrying on business under the name and style of M/s Shankar Finance &
Investments, a sole proprietary concern". But we are not dealing with a civil suit. We are dealing with a criminal
complaint to which the special requirements of Section 142 of the Act apply. Section 142 requires that the
complainant should be payee. The payee is M/s Shankar Finance & Investments. Therefore in a criminal complaint
relating to an offence under Section 138 of the Act, it is permissible to lodge the complaint in the name of the
proprietary concern itself.
9. The next question is where a proprietary concern carries on business through an attorney holder, whether the
attorney holder can lodge the complaint? The attorney holder is the agent of the grantor. When the grantor authorizes
the Attorney Holder to initiate legal proceedings and the attorney holder accordingly initiates legal proceedings, he
does so as the agent of the grantor and the initiation is by the grantor represented by his attorney holder, and not by
the attorney holder in his personal capacity. Therefore where the payee is a proprietary concern, the complaint can
be filed : (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the `payee'; (ii)
The proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and (iii) the
proprietor or the proprietary concern represented by the attorney- holder under a power of attorney executed by the
sole proprietor. It follows that in this case the complaint could have been validly filed by describing the complainant in
any one of the following four methods :
Atmakuri Shankara Rao, sole proprietor of M/s. Shankar Finance & Investments"
Or
M/s. Shankar Finance & Investments a sole proprietary concern represented by its proprietor Atmakuri Shankara Rao
Or
Atmakuri Shankara Rao, sole proprietor of M/s. Shankar Finance & Investments, represented by his Attorney Holder
Thamak Satyanarayana
Or
3
M/s. Shankar Finance & Investments, a proprietary concern of Atmakuri Shankara Rao, represented by his Attorney
Holder Thamada Satyanarayana.
What would have been improper is for the Attorney holder Thamada Satyanarayana to file the complaint in his own
name as if he was the complainant.
10. This Court has always recognized that the power of attorney holder can initiate criminal proceedings on behalf of
his Principal. In Ram Chander Prasad Sharma v. State of Bihar and Anr. MANU/SC/0280/1966 : 1967CriLJ409 , the
prosecution was commenced in regard to tampering of electric meter seals, with a charge sheet submitted by the
police after investigation on a first information report by one Bhattacharya, Mains Superintendent of Patna Electric
Supply Co. (`PES Co.' for short). An objection was raised by the accused that the prosecution was incompetent as it
was not launched by a person competent to do so. The said objection was based on Section 50 of the Indian
Electricity Act, 1910, which provided that no prosecution shall be instituted against any person for any offence against
that Act or any rule, licence or order thereunder, except at the instance of the Government or an Electric Inspector, or
of a person aggrieved by the same. This Court held :
...The P.E.S. Co., however, is a body corporate and must act only through its directors or officers. Here we have the
evidence of Ramaswami to the effect that he held a general power of attorney from the P.E.S. Co., and that he was
specifically empowered thereunder to act on behalf of P.E.S. Co., in all legal proceedings. The evidence shows that it
was at his instance that Bhattacharya launched that first information report and, therefore, it would follow that the law
was set in motion by the "person aggrieved". The objection based on Section 50 must, therefore, be held to be
untenable.
(emphasis supplied)
11. The assumption of the High Court that where the payee is a proprietary concern, the complaint can be signed
only by the proprietor of the proprietary concern and not by a Power of Attorney holder of the proprietor, is not sound.
It is not in dispute that in this case a power of attorney has been granted by Atmakuri Shankara Rao, as Proprietor of
M/s Shankar Finance & Investments in favour of Thamada Satyanarayana and the same was produced along with
the complaint. The description of the complainant is as under :
M/s Shankar Finance and Investments, (a proprietary concern of Sri Atmakuri Sankara Rao S/o Late Sri A. B. Rama
Murthy, Hindu, aged about 65 years), having its office at Flat No. 3B, Third Floor, Maharaja Towers. Vishakhapatnam
- 3 represented by its Power of Attorney Holder Sri Thamada Satyanarayana, S/o Late Adinarayana, Hindu, aged 50
years, Service, residing at MIG-B-230, Sagarnagar, VUDA Layout, Vishakhapatnam - 43.
The said description is proper and therefore, the complaint has been duly filed by the payee.
12. The High Court has referred to the fact that the sworn statement before the learned Magistrate was of the
attorney holder of the payee and not by the payee in person. According to the tenor of the order of the High Court,
this was also irregular. But we find nothing irregular in such a procedure. It is now well settled that the object of
Section 200 of the Code in providing for examination of the complainant and his witnesses by the court is to satisfy
itself about the existence of a prima facie case against the person accused of the offence and to ensure that such
person is not harassed by false and vexatious complaints by issue of process; See Nirmaljit Singh Hoon v. State of
West Benga l MANU/SC/0196/1972 : [1973]2SCR66 . Where the proprietor of the proprietary concern has personal
knowledge of the transaction and the proprietor has signed the complaint, he has to be examined under Section 200
of the Code. A power of attorney holder of the complainant who does not have personal knowledge, cannot be
examined. But where the attorney holder of the complainant is in charge of the business of the payee- complainant
and the Attorney holder alone is personally aware of the transactions, and the complaint is signed by the attorney
holder on behalf of the payee-complainant, there is no reason why the attorney holder cannot be examined as the
complainant. We may, in this connection, refer to the decision of this Court in Janki Vashdeo Bhojwani v. Indusind
Bank Ltd . MANU/SC/1030/2004 : AIR2005SC439 , where the scope of an attorney holder `acting' on behalf of the
principal in a civil suit governed by Code of Civil Procedure was examined. This Court observed:
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-ofattorney
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
4
which only the principal can have a personal knowledge and in respect of which the principal is entitled to be crossexamined.
[Emphasis supplied]
The principle underlying the said observations will apply to cases under Section 138 of the Act. In regard to business
transactions of companies, partnerships or proprietary concerns, many a time the authorized agent or attorney holder
may be the only person having personal knowledge of the particular transaction; and if the authorized agent or
attorney-holder has signed the complaint, it will be absurd to say that he should not be examined under Section 200
of the Code, and only the Secretary of the company or the partner of the firm or the proprietor of a concern, who did
not have personal knowledge of the transaction, should be examined. Of course, where the cheque is drawn in the
name of the proprietor of a proprietary concern, but an employee of such concern (who is not an attorney holder) has
knowledge of the transaction, the payee as complainant and the employee who has knowledge of the transaction,
may both have to be examined. Be that as it may. In this case we find no infirmity.
13. We, accordingly, allow this appeal, set aside the impugned order dated 21.8.2002 and direct the learned
Magistrate to proceed with the complaint as already directed by the interim order.
5
Bhaskar Kartha
(Querist) 09 March 2012
My only doubt in the case in hand is that the POA referred was executed leaglly in the requisite stamp paper as per the kerala stamp act but was not authenticated as per the section 85 of IEA. will that affect this case any manner since the magistrate has already taken the POA and complaint on file and proceeded till the hearing stage.
ajay sethi
(Expert) 09 March 2012
Section 85 of the Indian Evidence Act, 1872 (hereinafter referred to as the „Evidence Act‟), which reads as under:
"85. Presumption as to powers of attorney - The Court shall presume that every document purporting to be a Power of Attorney, and to have been executed before, authenticated by, notary public, or any Court, Judge, Magistrate, Indian Consul, or Vice Consul, or representative of the Central Government, was so executed and authenticated."
if it was not autheticated in manner prescried by evidence act it would imply that on date of filing of complaint the power of attorney holder had no authroity to file complaint
Bhaskar Kartha
(Querist) 09 March 2012
but the magistrate took the poa in file alongwith the complaint and started proceedings, including examination of witnesses and is due for hearing.
ajay sethi
(Expert) 09 March 2012
well magistarte must have overlooked the fact that POA is not notarised
DEFENSE ADVOCATE.-firmaction@g
(Expert) 09 March 2012
However this part of citation which has been reproduced from earlier matter of Bhojwani case is relevant.
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 crossexamined.
Bhaskar Kartha
(Querist) 09 March 2012
still My doubt persists regarding the maintainability of the POA in the case in hand as the POA referred was executed leaglly in the requisite stamp paper as per the kerala stamp act but was not authenticated as per the section 85 of IEA. will that affect this case any manner since the magistrate has already taken the POA and complaint on file and proceeded till the hearing stage.
SAINATH DEVALLA
(Expert) 09 March 2012
Dear Mr.Bhaskar,
You are not clear in your query.Kindly write the case history briefly.Then only after going through,we can provide you the correct advice.I could minutely understand your query,but not completely.Though Mr.Sethi has given the requisite citation,come out with the correct facts.Eloborate what kind of POA is it.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 09 March 2012
Just read again again and again the above portion of the citation and in cross the case will be finished.
Bhaskar Kartha
(Querist) 09 March 2012
thanks everybody in helping me reach a conclusion
Nadeem Qureshi
(Expert) 09 March 2012
thanks a lot Mr. Sethi for this judgement
ajay sethi
(Expert) 09 March 2012
thanks naddem for your appreciation
Sankaranarayanan
(Expert) 09 March 2012
Almost mr sethi allocated his valuavle time to ur qury
Shonee Kapoor
(Expert) 09 March 2012
Thanks Ajay Sir for this clarity.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
DEFENSE ADVOCATE.-firmaction@g
(Expert) 10 March 2012
NOW I AM GIVING A CONTRARY OPINION AND SUPREME COURT CITATION .
16. In this context reference can be made to a decision rendered
by a Full Bench of the Madras High Court in M.Krishnammal v.
T.Balasubramania Pillai AIR 1937 Madras 937 when a person, who
was the power-of-attorney holder of another, claimed right of
audience in the High Court on behalf of his principal. A Single Judge
referred three questions to be considered by the Full Bench, of
which the one which is relevant here was whether an agent with the
power of attorney to appear and conduct judicial proceedings has
the right of audience in court. Beasley, C.J., who delivered the
judgment on behalf of the Full Bench stated the legal position thus:
(AIR Headnote)
"An agent with a power of attorney to appear and conduct
judicial proceedings, but who has not been so authorised by
the High Court, has no right of audience on behalf of the
principal, either in the appellate or original side of the High
Court\005. There is no warrant whatever for putting a power of
attorney given to a recognized agent to conduct proceedings
in court in the same category as a vakalat given to a legal
practitioner, though latter may be described as a power of
attorney (which) is confined only to pleaders, i.e., those who
have a right to plead in courts."
17. The aforesaid observations, though stated sixty years ago,
would represent the correct legal position even now. Be that as it
may, an agent cannot become a "pleader" for the party in criminal
proceedings, unless the party secures permission from the court to
appoint him to act in such proceedings. The respondent-couple
have not even moved for such a permission and hence no occasion
has arisen so far to consider that aspect."
WHY THE DIFFERENCE BETWEEN ABOVE CITATION AND ONE POSTED BY MR SETHI THOUGH BOTH FROM SUPREME COURT., BECAUSE.......
DEFENSE ADVOCATE.-firmaction@g
(Expert) 10 March 2012
HIGHER COURT CITATIONS.
1) People get misguided by particular words or sentences in higher court citation and feel than like a computer or math problem it should be applicable to all.
IT DOES NOT HAPPEN.
2) Most important is that if a point is not raised or not denied specifically in lower courts , it is presumed to be admission and at higher courts it can not be reopened. And so decisions are given based on such admissions.So all citations can be applied in every case.
3) Such citations will not be applicable in cases where proper pleadings were raised and matter was thoroughly agitated in lower courts.
dev kapoor
(Expert) 11 March 2012
Hi,
Mr.AJ Sethi & JSDN-advocate DEFENCE seem to have done commendably well in sorting out the legal tangle on the moot question as to whether an 'unattested POA' can be used in proceeding u/s 138 NIA,by the complainant.Well done Sir.The efforts made by other respected persons on this thread cannot however be minimised.
KUDOS ALL!
The qn is very simple as I understand.It is sought to be affirmed as to whether a POA holder of the complainant can lodge a complaint & conclude proceedings without any legal onslaught i.e dismissal of the complaint on the sole ground that the POA is not even attested by a Notary Public.
Well,if S.142 of the Act permits the filing of a complaint by such POA on behalf of the 'payee or the holder of a in course of the cheque,there does not appear to be any legal infirmity that the Magistrate taking cognizance on the basis of this KIND of POA should scuttle proceedings in the midst of conclusion arrived at.Legally speaking in a private complaint once the Magistrate takes cognizance under the relevant provisions of Cr.P.C. he seizes to have jurisdiction to drop proceedings or dismiss the complaint without arriving at the conclusion i.e. acquittal or conviction (This is a Summons case)
Moreover the legal requirement is a 'power of attorney'. Power of Attorney, broadly speaking,is 'compulsorily registered ' document only in cases of alienation of immovable property (s.18 RA). All other types of POAs are 'optionally' registrable.A WILL DEED is not a compulsorily registrable document & yet it is admissible in evidence if it is in writing & signed by two attesting witnesses besides by the testator.Similarly if the POA spoken by the questioner herein is not attested by a NP,there is no legal infirmity in it & the complaint cannot be dismissed in the middle of proceedings without ascertaining its authenticity,if the same genuinely doubted upon.The intention of the legislature cannot be arbitrarily curbed by the Magistrate,first taking cognizance on the basis of such POA & subsequently dismissing complaint for want of being Notarised.The SC Judgment ( equivalent to AIR 2009 SC 422)nowhere says so although it affirms the statutory provision that a complaint u/s.138 read with section 142 can be lodged by a POA.Once the Legislature made a provision like this the purpose is to relief the complaint (may be a corporate of MNC or likewise or other busy person) of the drudgery of legal wrangles that are unexpectedly to be undergone by him during court proceedings.If the law does not say that a 'particular' type of POA is required we cannot read words in the statute it self which are NOT there in the provision.With due respect to Mr AJ Sethi,the SC Judgment NOWHERE prohibits the filing of a complaint u/s.138 NIA through a POA (which is NOT Notarised)duly executed by what the law needs i.e.Section 142 of the Negotiable Instruments Act provides that a complaint under section 138 can be made by the payee or the holder in due course of the said cheque & the same can be filed through an attorney holder,the Magistrate should , if there be any suspicion about the executability of the same by the 'payee or the holder in due course of the cheque' he must have asked to prove the authenticity rather than taking the extreme step if Dismissing the complaint on this ground....NO WAY !!Q
Anirudh
(Expert) 11 March 2012
Dear Mr. Bhaskar Kartha,
Both and Mr. Ajay Sethi are quite right that Section 85 of the Indian Evidence Act will come into play in such a situation.
Where power of attorney is neither executed before nor authenticated by Notary Public, then presumption under Section 85 cannot be raised. [ Electric Construction & Equipment Co. Ltd. v. Jagjit Electric Works, Sirsa, AIR 1984 Del. 363 (DB)].
According to the Delhi HC, Sec. 85 raised a presumption about the execution of the power of attorney, PROVIDED the conditions are satisfied. Firstly, it must be executed before the Notary Public, and Secondly, it must be authenticated by a Notary Public. For this observation, the court relies on two earlier decisions namely Citibank N.A., New Delhi v. Juggilal Kamlapat Jute Mills Co. Ltd. Kanpur [AIR 1982 Del. 487] and National and Grindlays Bank Ltd. v. M/s. World Science News [AIR 1976 Del. 263].
In the Goods of A.J.Primuse (deceased) [16 ILR Cal. 776], the Calcutta HC interpreted Section 85. On an application for letter of administration to the estate of a deceased, who was domiciled in Scotland, and to whose estate one P had been appointed executor, the application being made by one K under a power of attorney granted by "P", such power NOT HAVING BEEN EXECUTED AND AUTHENTICATED IN THE MANNER PROVIDED FOR BY SECTION 85 of the Evidence Act, 1872, the Calcutta HC held that the application MUST BE REFUSED.
Bhaskar Kartha
(Querist) 14 March 2012
There is an interesting twist to the question. during the examination of the Purported POA holder, the POA was marked tentatively by the court. The prosecution filed a petition to summon the defacto complainant to examine on a commission u/s 284 as the defacto complainant was laid up. The defence filed an objection stating that the complaint was given by the POA holder for the defacto complainant. The court has already examined the POA holder for the Defacto complainant and accepted the same as of DC.Therefore the present petition to examine the defacto complainant will not stand in law or facts in yhis case. The CMP was disallowed on this objection. Will the contention that the defence has admitted the proof of the POA u/s 21 and 58 of IEA stand.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 14 March 2012
The complainant has played smart trick. The accused should have insisted for a PURSIS that DEFACTO complainant will not be examined before taking the evidence of donee of POA.
Now proof of POA has become irrelevant since the original evidence as per section 60 is before the court.
