Power of Attorney expired in 138 N.I Act case
Sujit J Pathak
(Querist) 12 June 2010
This query is : Resolved
In present case u/s 138 N.I Act the complainant is a N.B.F.C company and is hence represented by Power of Attorney holder who is a recovery officer of company. The P.O.A submitted by ccompany states that that it is valid till 31.03.2010 and on this date it will be cancelled automatically. Now the case has reached stage of Cross-Examination of Complainant i.e P.O.A holder on 28.06.2010 but the P.O.A is already expired and it has not yet been renewed yet moreover magistrate is not issuing directions for renewal of POA. What can be done in such a scnenario? I am appearing for accused and has already raised an objection, Kindly provide any solution.
Thanks and regards
Adv Sujit J Pathak
Guest
(Expert) 12 June 2010
YOU MAY MENTION THE FACTS AND SUBMIT AN APPLICATION TO THE COURT FOR DISCHARGE OF ACCUSED. COURT WILL CALL SAY OF COMPLAINENT AND PASS JUST AND PROPER ORDER.
THANKS.
Sujit J Pathak
(Querist) 12 June 2010
Sir I am grateful that you spared few minutes for answering my query, Sir this being a summons case i cannot move a discharge application further since POA is expired complainant is not represnted by anybody which itself is a defect. The magistrate is adament that i should cross-examine the person whose POA is already expired.
Raj Kumar Makkad
(Expert) 12 June 2010
If the affidavit is already on file or oral examination in chief of POA (expired) has already been made then court in right in its approach and you shall have to examine him. Its means that on the day of filing the complaint, he was duly authorized to file a complaint and further that he filed the complaint on the basis of cause of action mentioned therein.
It is true that if complainant is not present or is not represented by party in person, it can be decided as dismiss in default. In the matters of artificial persons like NBFCs, a liberal attitude is adopted by courts especially at the stage when cross-examination is going on.
B K Raghavendra Rao
(Expert) 12 June 2010
When the complainant i.e. POA holder has been examined, he only should be cross-examined even if he does not hold any power of attorney at the time of cross-examination. Think how one can give evidence and another person would be cross-examined. Such a situation cannot arise. Therefore, you can cross examine only the person who has adduced evidence.
Moreoever, why do you want to think of weak links to get over the case. You must defend upon logically strong grounds so that it would stand even appeals in higher courts.
Magistrate is right in not insisting upon the POA holder to get the renewed POA as it is not required for cross-examination.
G. ARAVINTHAN
(Expert) 13 June 2010
Any person can be authorised from the company and can be given right to depose evidence in the 138 case.
Sujit J Pathak
(Querist) 13 June 2010
Can I move an application for dismissal as company is not represented by anybody presently?
Arvind Singh Chauhan
(Expert) 13 June 2010
SC held in 2004 that Power of attorney can not be a witness.
Santosh Kumar.K
(Expert) 14 June 2010
yes,you can move an application for dismissal of case
Sukhija
(Expert) 25 June 2010
u point out this fact at argument stage. now if u will point it, the complainant can rectify the mistake at any stage.
SURESHKUMAR.S
(Expert) 21 November 2010
It's good to cross examine the Power holder ,who represented earlier.
Moreover, the issue is to conduct & represent cases u/s 138 NI Act , vide decisions from Apex court in 2004 and even subsequently till 2010, in respect of company matters, the power agent is the competent person to depose. But in other cases, the power agents cannot depose as witness which legal position is correct.
Similarly ,in summons cases discharge is not applicable. in suitable circumstances that too for summons cases instituted other wise than on complaint (excluding private complaints under sec200 crpc)Magistrate may stop the proceedings under section 258 crpc.
But 1994 -Indian Express case ( defamation case) Honble Justice K.T.Thomas's citation, even for summons cases discharge is applicable (but holding that it is applicable for that case only.)
Advocate. Arunagiri
(Expert) 21 November 2010
Even if the POA's is period is expired, you can cross examine the POA. Once he had become the witness within the period, he is bound to appear for the cross examination.
The company is always represented by persons for running their day to day operations. So, for the corporates the POA can be a witness.
One more thing I would like to add. For the corporates the representing person need not be a POA, simple letter (issued by the competent authority) authorizing him to represent the company is enough.
