ORDER
The petitioners are before this Court calling in question order dated 27-11-2021, by which the XXI Additional Chief Metropolitan Magistrate, Bengaluru, takes cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the Act' for short) registered in C.C.No.33382 of 2021 and issues summons to the petitioners.
2. Heard Sri Chandrashekar P.Patil, learned counsel appearing for the petitioners and Sri R.Shivacharan, learned counsel for the respondent.
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3. Sans details, facts in brief are as follows:-
A transaction between the petitioners and the complainant leads to the complainant registering a crime invoking Section 200 of the Cr.P.C. for offences punishable under Sections 138 and 142 of the Act, contending that the instrument dated 07.09.2021 for a sum of Rs.39,61,075/- issued by the petitioners when presented on 07-09-2021 was returned with an endorsement 'account closed'. The issue in this case is not with regard to merits of the matter.
4. The learned counsel for the petitioners is before this Court on a solitary submission that the complaint is presented by a power of attorney holder Mr. G.Srinivas representing Mr. Vipul Hirawat. The contention is that, the said power of attorney is not notarized and non-notarized power of attorney, according to the learned counsel, would vitiate the complaint itself and all further proceedings thereto, before the learned Magistrate.
5. The learned counsel representing the respondent would however refute the submission to contend that it is not
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mandatory for a general power of attorney to be notarized and would place reliance on the judgment of a Co-ordinate Bench of this Court considering an identical submission in the case of
AMIT ROY v. JYOTHENDRA SINHJI VIKRAMSINHJI
reported in 2017 (1) KLJ 106.
6. I have given my anxious consideration to the submissions made by the learned counsel appearing for both the parties and perused the material on record.
7. The afore-narrated facts are not in dispute. The only submission being made by the learned counsel for the petitioners is that, non-notarization of general power of attorney would vitiate the complaint and all further proceedings. The issue whether non-notarization of the general power of attorney would by itself vitiate entire proceedings as the complaint is filed by the power of attorney holder, need not detain this Court for long or delve deep into the matter as the Co-ordinate Bench of this Court considering the very submission in the case of AMIT ROY (supra) has held as follows:
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"19. Section 196 of the Contract Act provides for the ratification of the acts done by one person on behalf of the other. If the principal ratifies the agent's acts, the same effect will follow as if they had been performed by his authority. Section 197 of the Contract Act states that the ratification may be expressed or may be implied in the conduct of the person on whose behalf the acts are done.
20. Such being the scheme of Chapter X of the said Act, there is nothing to indicate that the power of attorney document has to be compulsorily notarized or registered. If the power of attorney documents were to contain the clause enabling the agent to sell the principal's property, it is then that it becomes a compulsorily registerable document.
21. As observed by the Apex Court in the case of Tmt. Kasthuri (supra), the grant of power of attorney is essentially governed by Chapter X of Contract Act. A power of attorney holder or the agent derives the right to use the principal's name and perform certain acts, deeds and things on behalf of the principal, subject of course, to the limitations contained in the said deed; the same shall be treated as if they are done by the principal. A power of attorney is a document of convenience.
If the power of attorney is notarized, the presumption is raised in favour of its execution. But it cannot be contended with any rate of success that if the power of attorney document is not notarized, it is not executed at all. In the instant case, the
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respondent-plaintiff appeared before the Trial Court and stated that he executed the previous power of attorney (of the year 2000) in favour of Vallabhai Radhanapura and that recently, on 3.6.2015, he executed another general power of attorney in favour of said Vallabhai Radhanapura. It meets the requirements of section 197 of the said Act.
22. If the petitioner - defendant proposes to dispute the genuineness and authenticity of power of attorney documents in question, it shall be open to him to do so in the course of his evidence. On the ground of lack of territorial jurisdiction or of the not mentioning of the serial number of the Notarial Register on the document, I am not persuaded to reject the marking of the general power of attorney document, dated 3.6.2015. What evidentiary value can be attached to the said document is for the Trial Court to decide on hearing both the sides.
23. On the ground of limitation also, the marking of the power of attorney document cannot be rejected. Section 196 of the said Act itself does not prescribe any limitation or time- frame within which the principal has to ratify the agent's acts. What is the effect of the allegedly belated production of a document can be shown in the course of evidence and argumentation." (Emphasis supplied)
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Since the solitary submission of the learned counsel is with regard to the issue whether a non-notarised power of attorney can be accepted and such non-notarisation of the power of attorney would not vitiate the proceedings, being the law laid down by the Division Bench as afore-quoted, the petition deserves to be rejected. The other judgments relied on by the learned counsel appearing for the petitioner, the one rendered by the Madras High Court, would be inapplicable to the facts of the case at hand.
8. For the aforesaid reasons, the petition lacks merit and is accordingly, dismissed.
I.A.No.1/2022 is disposed, as a consequence.
Sd/-
JUDGE
nvj