In the Court of District and Sessions Judge, Nainital.
Present : U.C.Dhyani, H.J.S.
Criminal Revision no.36/2004
State, through Renu Bajaj w/o S.M.Bajaj r/o 25,
Road, Lucknow Cantt.
…………. Revisionist.
1. Aklesh Chandra s/o B.K.Agarwal r/o 7/10B Dalibagh,
Butler Road, Lucknow.
2. Smt. Mithlesh Singh w/o N.P.Singh r/o House no.109,
Sakat, Meerut.
3. Mahaveer Singh s/o Kanti Chandra r/o Mayflower
Bhowali, District Nainital.
4. Balkishan Kapoor s/o
Rajendranath Kapoor r/o A193,
Gujranwala Town, Part I, Delhi.
5. Anil Kapoor s/o Rajendranath Kapoor r/o A193,
Gujranwala Town, Part I, Delhi.
6. Sushil Kapoor s/o Rajendranath Kapoor r/o A193,
Gujranwala Town,
Part I, Delhi.
7. Sunil Kapoor s/o Rajendranath Kapoor r/o A193,
Gujranwala Town, Part I, Delhi.
Smt. Menu Chandra w/o Aklesh Chandra r/o Butler
Road, Lucknow. ……….. Respondents

Criminal Revision no.37/2004
State, through D.G.C. (criminal), Nainital. ……..
Aklesh Chandra and others. …….. Respondent.
This criminal revision has been filed against the order
dated 14.07.2004 passed by Shri Rajendra Singh Chauhan, the
then learned Chief Judicial Magistrate, Nainital in criminal case
no.272/2000, whereby the accused persons/ respondents were
at the stage of framing of charge.
2- The thrust of this revision is on the fact that the
order of learned C.J.M. is
perverse and against law. He has
neither applied his mind to the facts of the case nor has he
appreciated the contents of the F.I.R.
and other evidence
collected by the investigating agency.
The revisionist has also taken the ground that a
of the two provisions for charge and discharge makes it
clear that at the beginning and at the initial stage of the trial, the
is not required to meticulously judge the truth, veracity
and effect of evidence which the prosecutor proposes to adduce,
nor any
weight is attached to the probable defence of the
accused. It is not obligatory for the judge at that stage of trial to
the things in detail. He has to weigh in a sensitive
balance whether the facts if proved would be incompatible with
the innocence
of the accused or not. The court at that stage is
not to see whether there is sufficient ground for conviction or
whether the trial
is sure to end in the conviction of the accused
and the only thing to be seen is whether there is a strong
suspicion which leads
the court to think that there are grounds
for presuming prima facie that the accused had committed an
The revisionist has also pleaded that learned trial court
has erred in not even taking into consideration that an
was pending before the learned trial court for issuing
necessary directions under Section 173(8) Cr.P.C. for further
as the main accused Aklesh Chandra has got the
signatures of the complainant forged on various documents for
the purpose
of using. The application of the
revisionist/complainant dated 14.08.2000, paper no.28Ka and
another dated 16.9.2002
have not been taken into consideration
by the learned trial court in a haste for arguments on the matter
of framing of charge or
discharge. (It appears that this
application has not been pressed later on.) This slipshod causes
prejudice to the complainant/revisionist
and is an error apparent
on the face of record. The finding of the Court that the
possession of the flats was handed over to various
persons on 12.06.1997, 31.8.1996 and 20.1.1997 is factually
incorrect. Some of the flats were not even ready at that time.
is strange that if Aklesh Chandra was having General Power of
Attorney till 13.6.1997 what was the occasion for him to have
the possession letters to the flat buyers bearing the
alleged forged signatures of Renu Bajaj, the complainant. The
reason is very
clear that the purchasers of the flats knew that
the power of attorney has been cancelled so they wanted these
possession letters
and all these letters were ante-dated signed in
conspiracy with the buyers by the main accused Sri Aklesh
Chandra and Smt. Menu Chandra.
That even the learned trial
court has erred in saying that the letters have been produced on
the file by the prosecution voluntarily.
This is factually incorrect.
The prosecution says he never handed over any document. The
case of the prosecution is that the power
of attorney was
cancelled on 13.6.1997 which was to the knowledge of Sri Aklesh
Chandra and Smt. Menu Chandra and the perusal of
impugned order does not say that this was not to the knowledge
of the persons Sri Aklesh Chandra and Smt. Menu Chandra but
sale-deed was executed much later than 13.06.1997. The
case of the prosecution is that Sri Aklesh Chandra used the
cancelled power
of attorney for the purpose of executing sale
deeds knowing and having reason to believe that the power of
attorney has been cancelled,
so did this illegal act.
The impugned order has also been assailed on the
ground that this single circumstance is sufficient
not only for
framing of the charges against the accused but even for the
purpose of conviction. The operation of the joint account
no. CAP
366 which was opened in the State Bank of Bhowali was stopped
by the petitioner. The buyers had issued and made the payment
to Sri Aklesh Chandra at the time of consideration to be paid in
front of the Sub-registrar. How could Aklesh Chandra receive this
payment individually in his name when it was a property jointly
owned by the petitioner and Shri Aklesh Chandra’s wife? The
was that the flats were sold on cheaper rates which was
to the knowledge of the flat buyers. It is a clear indication that
the object
was to cheat the petitioner/complainant and this act
itself is a deception within the meaning of Section 415 I.P.C.
where cheating
is defined and the learned C.J.M. has totally
ignored all these aspects mentioned above.
It is also pleaded that learned
C.J.M. has further erred
by failing to appreciate that there is difference between so called
handing over the false possession as
alleged by Shri Aklesh
Chandra than the actual registration. The offence was committed
when Shri Aklesh Chandra executed the sale
deed in favour of
the flat buyers knowing and having reason to believe that the
power of attorney has been cancelled as back as on
There was a specific allegation against Shri Aklesh Chandra that
he threatened the complainant, her father Shri B.R.Handa
her husband Shri Sunil Bajaj on the telephone. There is sufficient
evidence on the file to this effect as the police protection was
given to these witnesses
during their stay in Nainital when they
had come to lodge the said F.I.R. Learned C.J.M. has totally
ignored this aspect of the matter.
A perusal of the impugned
order clearly shows that the learned C.J.M. had decided to
discharge the accused persons for the best reasons
known to
him without going into the legal and factual aspect of the matter.
Learned C.J.M. was not fair to the record. Learned C.J.M.
has not
appreciated the circumstances as to when negotiations were held
for settlement and has failed to appreciate that the intention
Shri Aklesh Chandra was malafide who played a double game
with the petitioner as his object was to deprive the petitioner of
valuable share in the property. Aklesh Chandra has failed to
produce the accounts till today. There was no settlement
between the
parties. Had there been a settlement, then the
petitioner would not have contested her claim and case for the
illegalities committed
by Shri Aklesh Chandra and others.
Learned C.J.M. has gone out of way to take the aspect of
settlement into consideration which is
factually not correct. The
petitioner on 27.7.1998 and on 28.7.1998 had informed the
executive engineer that the electric connection
in Mayflower
Apartments, Bhowali has been changed to the name of Mrs.
Mithlesh Singh without her permission. Shri Aklesh Chandra
connivance with Smt. Mithlesh Singh forged the signatures of the
petitioner and got the electricity connection changed. A letter
was also written to the investigating officer to this effect by the
petitioner. Similarly water connection was also changed by
the signatures. The petitioner has also attached the bills
received in her name earlier right from the beginning of 1995 till
The revisionist has also taken the ground that Smt.
Menu Chandra had acknowledged in her affidavit
12.8.1997 that the bank operation has been stopped and there
is so much material on record to show a prima facie case against
all the accused persons. The petitioner had requested the state
agency also to file a revision. Accordingly, state appeal has also
been filed by learned D.G.C. (criminal).
So, the revisionist has prayed to call for the records of
the learned trial court,
hear the petitioner and set aside the
impugned order dated 14.7.2004, direct the C.J.M., Nainital to
frame the charges against all
the accused persons for the
offences mentioned in the F.I.R. which is supported by the
evidence collected by the investigating agency
and to proceed
with the trial of the case according to law.
3- An F.I.R. was lodged on 08.10.1997 by Renu Bajaj
that she had executed a registered power of attorney in
favour of Akhilesh Chandra on 10.7.1996 which she had
cancelled on 13.6.1997
through a registered deed, but inspite of
that he had executed two sale deeds on 13.10.1997 and
01.10.1997 claiming himself to be
attorney of Smt. Renu Bajaj
and thereby he had cheated her and forged the documents.
Besides he had threatened her as well.

In this respect it was submitted by the learned
counsel for the accused persons/respondents that no offence is
made out. According
to them, there was some civil dispute
between the parties, therefore, an injunction suit was filed by
Smt. Renu Bajaj. The appeal
filed against the order of Civil Judge
was dismissed on 05.10.1997 because it was not pressed on
account of compromise between the
parties. Even a writ pending
in the High Court was not pressed on the ground that parties will
settle the matter outside the court.
The writ was accordingly
dismissed on 08.10.1997. It was further pleaded that after the
lodging of this F.I.R., the complainant herself
gave it in writing
on 02.12.19988 to the investigating officer that she does not
want to pursue the complaint and the matter be dropped.
more circumstance was placed before the court that after the
alleged date of cancellation of registered power of attorney, the
informant/complainant had made the endorsement of
confirmation and rectification on certain sale-deeds
16.6.1997. It has also been argued that the complainant had
executed letters acknowledging delivery of possession
12.6.1997 admitting therein the receipt of sale consideration and
delivery of possession of the flats to different purchasers.
According to the accused persons/respondents, the sale-deeds in
question have been executed with respect to those flats the
of possession of which had already been given by the
complainant much before the lodging of F.I.R. in which she had
the receipt of sale consideration as well. Thus
according to the respondents, no cheating has been committed.
4- I have
heard learned D.G.C (Criminal), learned
counsel for the revisionist, learned counsel for the respondents
and have gone through the
record of the case.
5- Section 2 of the Powers of Attorney Act, 1882,
empowers the donee of a power of attorney to execute
or do any
instrument or thing in and with his own name and signature, and
own seal, where sealing is required, by the authority of
donor of the power and every instrument and thing so executed
and done, shall be as effectual in law as if it had been executed
or done by the donee of the power in the name, and with the
signature and seal, of the donor thereof.
Where an act purporting
to be done under a power of
attorney is challenged as been in excess of the authority
conferred by the power, it is necessary to
show that on fair
construction of the whole instrument the authority in question is
to be found within the four corners of the instrument
either in
express terms or by reason of implication. (AIR 1915 Privi
Council 121)
A power of attorney is to be strictly construed. When
challenged as being in excess of the authority conferred by the
power, it is necessary to show that the authority in question is to
be found within the four corners of the instrument either in
express terms or by necessary implication. [Bryant Quebeck
Bank 1893 AC 170, 177: Ezekiel v Carew, AIR 1940 Oudh 107]
Some of the principles governing the construction of
a power of attorney are:
(1) The operative part of the deed is controlled by
the recital.
(2) Where an authority is given to do particular
act, followed by general words, the general

words are restricted to what is necessary for
the performance of the particular act.
The general awards do not confer general
powers but are limited to the purpose for which

the authority is given and are construed as
enlarging the special powers only when

necessary for that purpose.
(4) A power is construed so as to include all
incidental powers necessary
for its effective
execution. [AIR 1985 Karnatak 213 (DB), AIR
1972 Gowhati 122]
the power of attorney holder was given power
of attorney to sale properties of executant by applying sale
proceeds of the schedule
property, it would necessarily mean
that he had power to execute the sale and convey proper title to
the purchaser. [AIR 1986 Karnatak
70 (DB)]
Likewise, power to negotiate for sale of lands to
prospective purchaser for the best available price conferred
power of attorney account construed as meaning authority to
dispose of the property or to enter into an agreement for the
of the same. [AIR 1997 Bombay 142 (DB)]
In the instant case, two persons entered into an
instrument of partnership. The
same persons executed a power
of attorney in favour of one of the respondents/accused persons.
It is the prosecution case that one
of the donors revoked that
power of attorney. It is serious question of law to be considered
as to what will be the effect of that
50 percent revocation. Will it
be construed to be the revocation of the power of attorney duly
executed by two persons or the revocation
will be considered
incomplete? What is the legal sanctity of that fifty percent
revocation? When was the notice of revocation of
fifty percent of
the power of attorney was given to the accused or when did he
receive it, is a different question of fact but the
prime question
is, what is the validity of such a revocation?
This case proceeds on a simple assumption. `A’ and
`B’ entered
into an instrument of partnership. Both of them
executed a duly registered power of attorney in favour of `C’.
While `A’ continued
to lend a supporting hand to `C’, `B’ on a
midway revoked that power of attorney. It is said that `C’
continued to sell the property
on behalf of `A’ and `B’ despite
being informed of a revocation of such a power and continued to
do certain things on behalf of the
donors. It is alleged that `C’
had no authority to do so. The whole case proceeds on the
assumption that `C’ had exceeded his powers
and then comes
criminal intent and mens rea and all that which constitutes
offences under Section 409, 471 IPC etc. Let us have a
look at a
copy of the power of attorney. While two persons had intended
to empower `C’ to do certain things and it was a revocable
of attorney, no where it is mentioned that the power of attorney
may be revoked by any of the persons that is either by `A’
or `B’
and not jointly by `A’ and `B’. The next thing is when did `C’
receive the information about revocation of power of attorney?
`C’ dates it to the month of October whereas the prosecution
alleges it to be in the month of the June, 1997 (13.06.2007).

Learned prosecutor has placed the case laws of State
of Orissa v Debendra Nath Padhi, 2005 (1) Crimes 1 (SC) ;
Surender Kumar v State, 1996 V AD (Delhi) 345 ; Ramji
Chauhan v State of U.P., 1998 (37) ACC 863 ; Niranjan Kumar
Das v Ranadhir
Roy and others, 1990 CRI.L.J.683 and Dayalu v
State of U.P., 1992 AAC 236 (HC) before the court and has
submitted that at the time
of charge the court need not go
beyond what is collected by the investigating agency. At the
stage of framing of charge, the court
has to consider that the
material available at that stage makes out a prima-facia case
against the accused persons. The entire material
and documents
are not required to be sifted and analysed minutely with a view
to find if a conviction can be founded on there basis.
That is to
be done after the entire evidence has been adduced. The
material as produced by the prosecution alone is to be
and not the one produced by the accused. The only
right the accused has at that stage is of being heard and nothing
beyond that.
There is substance in the argument of learned
D.G.C. but at the same time it is clear that the facts, as gathered
by the investigating
agency are to be taken as they are at the
time of framing of charge. Supposedly, the entire facts of FIR
and those collected by
the investigating agency constitute an
offence, the charge will be framed against the accused. But if all
the facts gathered together
along with material collected by the
investigating agency are taken up together do not constitute an
offence, then in that case the
accused may be discharged.
At the very outset, it may be made clear that the
question of maintainability of the revision
is not being discussed
in detail because in the instant case the revision has been filed
by the complainant as well as by learned
state counsel. Even if it
be conceded for the sake of arguments that the revision is not
maintainable at the behest of a private
complaint, it is more than
certain that a revision by the prosecutor is all the more
maintainable. The rulings of Niranjan Kumar
Das v Ranadhir
Rao, 1990 Cri.L.J. 683 (Gauhati); Bhupendra Kumar v State of
Rajasthan, 1996 Cri.L.J. 3180 (Raj.); were cited and placed
before this court by the opposing sides.
Learned D.G.C. was also at pains to argue that no
foreign material can be seen and taken into consideration by the
court at the time of framing of charge. He elaborated that if
happened to be certain papers in possession of the
accused, the proper time for their submission before the court is
the stage of
defence evidence after the statement of the accused
under Section 313 Cr.P.C. is recorded. It was proper for the
learned trial court
to have looked into the papers submitted by
the investigating agency alone. The papers in possession of the
accused persons might
be considered at the appropriate stage
and not before that.
This revision court has proceeded to narrate and
draft his judgment only on the basis of the material collected and
into service by the investigating agency. It is the case of
the prosecution that Smt. Mithlesh, Dharmendra, Balkishan were
sold the
property after 13.6.97. The power of attorney was given
on 10.7.96 and the alleged revocation took place on 13.6.97.
The property
was sold to Smt. Mithlesh on 10.10.97. The
allegation is that despite revocation of power of attorney, the
property was sold of to
her and thereby one of the donors of
such an authority was cheated.
Section 182 of the Indian Contract Act, 1872 defines
the `agent’ and the `principal’. It says that an agent is a person
employed to do any act for another or to represent another
dealings with third persons, the person for who such act is done,
or who is so represented, is called the `principal’. The authority
of the agent to act is derivative authority. An agent having an
authority to do an act has authority to do every lawful thing
is necessary in order to do such act. It was held in
R.K.Dalmia v Delhi Administration, [1962] INSC 124; AIR 1962 SC 1821 that the
statement of a person having authority to represent another on
the basis of a power of attorney is the statement of an agent
the course of business and admissible in a criminal case against
the principal.
As between partners and the out side world, each
partner is the unlimited agent of every other in every matter
with the partnership business. [Watteau v Fenwick,
(1893) 1 QB 349: (1891-94) All.E.R.897]
An agent having authority to sell can do what is usually
done in the course of conducting a sell.
[Goverdhan v Abdul, AIR
1942 Madras 634]
The Indian Contract Act, 1872 provides that the
principal may revoke the authority given to his agent at any time
before the authority has been exercised so as
to bind the
principal. The principal cannot revoke the authority given to his
agent after the authority has been partly exercised
so far as
regards such acts and obligations as arise from acts already
done in the agency. Reasonable notice must be given of such
revocation or renunciation. Revocation and renunciation may be
expressed or may be implied in the conduct of the principal or
The termination of the authority of an agent does not, so
far as regards the agent, take effect before it becomes known to
him, or
so far as regards third person, before it becomes known
to them. The principal is bound by transactions entered into on
his behalf
by his agent, even though the authority of the agent
had been terminated, provided third persons entering into such
with the agent had no notice of the revocation of his
The General Power of Attorney executed by Renu
Bajaj and Menu Chandra on 10.07.1996 was cancelled by Renu
Bajaj for half
of her share in the property situated at Lalli Temple
Compound Gorakhal Road, Bhowali on 13.06.1997. Paper no.
3ka/8 bears the signature
of Renu Bajaj and Sunil Mohal Bajaj
along with Sharad Saigal as witnesses. Paper no.3ka/9 is the
photo copy of the telegram message.
It says “Power of attorney
executed by me (Renu Bajaj) in your favour has been revoked
on 13.06.97. You are restrained from taking
any action. This is
for your information”. The telegram was dispatched on 14.06.97
(paper no.3ka/10). Even if it be conceded that
Mrs. Renu Bajaj
has revoked power of attorney, then that revocation holds good
for half of her share. The remaining half share is
owned by Menu
Chandra. It is not the prosecution case that she has also revoked
power of attorney as regards her remaining share.
Paper no.3ka/22 to 3ka/24 is the copy the
instrument of partnership executed on 30 March, 1992 between
Meenu Chandra and Renu Bajaj. The instrument of partnership
says that Meenu Chandra and Renu Bajaj were carrying on the
of builders colonisers under the name and style of M/s
Meenu Chandra Renu Bajaj with effect from 18 June, 1991. It
was a partnership
at will. Point no.7 of the instrument of
partnership is important. It says that the profit and losses of
business shall be shared
equally by the partners. It also conveys
that the disputes amongst the partners shall be settled by
arbitration only.
Then comes the power of attorney paper no.3ka/25
to 3ka/26 executed by Smt. Meenu Chandra and Smt. Renu
Bajaj in favour
of Sri Aklesh Chandra s/o Sri V.K.Agarwal. It
empowers Aklesh Chandra to do, inter alia, to negotiate on
terms for and to agree to
and to enter into and conclude any
agreement or sale and sell may flower apartments to any
purchaser at such price which the attorney
in his absolute
discretion things proper or to cancel or to repudiate the same. It
also provides that the power of attorney is revocable
and can be
cancelled. The mode and manner of revocation and cancellation
is not specified in the power of attorney. It bears the
of both the executants. The fate of the firm “M/s Meenu Chandra
Renu Bajaj” is not known. Learned magistrate in his order
14.07.2004 has cited the following reasons while discharging the
accused persons/respondents.
(a). The prosecution agency has filed the photo copies of
the letters acknowledging and delivery of possession, which
that Smt. Mithlesh Singh, Dharmveer Singh Khurana and
Sushil Kapoor were handed over possession of the flats on
12.06.96, 31.08.96
and 20.01.97 respectively and the sale
deeds were executed in their favour later on.
(b). Mrs. Renu Bajaj and her partner
Mrs. Meenu Chandra
themselves have handed over possession of the flats to other
(c). Accused Mahavir Singh has simply attested the
signatures of the seller and the buyer, the identity of whom is
not under
(d). The dispute which has arisen between the parties is
of civil nature and it will be sheer wastage of time of the court,
the criminal case is allowed to be processed.
The other attributable reasons given in the judgment
(e). It is not a case in which any person has been
(f). Smt. Meenu Chandra who herself is partner to the
informant of the case, has neither sold any flat nor has she put
her signatures as an attesting witness. She is simply a
signatory to the joint power of attorney executed in favour of
Aklesh Chandra.
(g). Balkishan Kapoor, Suneel Kapoor, Anil Kapoor,
Dharmveer Khurana and Smt. Mithlesh Singh are bonafide
for value and were handed over possession before the
crucial date i.e. 13.06.97 of cancellation of power of attorney.
Mrs. Renu Bajaj
and Mrs. Meenu Chandra had handed over
possession of the flats to the prospective buyers and received
consideration in lieu thereof.
(h). At one time of point Smt. Renu Bajaj had made a
request to withdraw her FIR.
(i). The matter between Mrs. Renu Bajaj and Sri Aklesh
Chandra remained pending with the Hon’ble High Court of
at Allahabad. The writ petition was dismissed as `not
pressed’ because the Hon’ble Court directed the parties to settle
the matter
out of the court.
(j). Learned C.J.M. arrived at the conclusion on the basis
of prosecution documents alone.
Paper no. 4Kha/93 to 4Kha/104, 4Kha/105 are the
documents of 02.12.98 had placed before the court below and
pleaded that they
are bonafide purchaser for value, they had
paid consideration and they have no information about
revocation of power
of attorney.
Section 482….
Kirtyanand Sinha v Ramanand Sinha and others, AIR
1936 Patna 456.
Principal and Agent ­ Several persons appointing
common agent ­ One of them cannot revoke under all
Where several persons have together appointed an
agent, it cannot be said that under all the circumstances one of
is entitled to revoke the authority of the agent. [Bristow
and Porter v Taylor, 2 Stark R 47, Expl.]
I now go back
to the substantial part of the second
point as to whether in these circumstances the common
management was brought to an end by the
defendant dispensing
with the services of Mr. Daunt. Mr. Das has relied upon the
English law on this point and has contended on the
authority of
the case in 2 Stark R 47 (1), that either of the joint proprietors
who had jointly entered into this agreement with
Mr. Daunt
might at any time discharge him. That was the case in which
after the dissolution of partnership the partners had agreed
a certain person should collect the debts of the partnership.
Having collected the debts one of the employers counter-manded
his authority and demanded payment from the agent. It was
held there that in the circumstances the authority of Bristow
(that was
the agent) was revocable. Lord Ellenborough
expressed himself in these words:
If Bristow had, in consequence of the authority given
him, done any act, it might not have been revocable; but the
to him was counter-mandable and had in fact been
counter-manded; each partner had a right to counter-mand
before any act intervened
which in point of law would preclude a
It will be seen from the words which I have read
that, even if the case cited is relevant or in point, it does not
out the proposition that under all the circumstances one of
the joint proprietors would be entitled to revoke the authority of
It is contended by Mr. Das that the action of the
defendants effectively brought the common management to an
end and
that the only right which the plaintiff had in the
circumstances was to claim damages for breach of his
But in my judgment, that does not in any way
dispose of the question whether the common management was
brought to an end or not.
In my opinion that in no way depends
upon whether one or another of these parties was entitled to
dispense with the services of Mr.
The revision, thus, merits dismissal. Order
The revision is hereby dismissed. The impugned
order dated 17.06.2006 is confirmed.

Dated: 13-7-2006 District & Sessions Judge,

Judgment signed, dated and pronounced in the open
Court today.
Dated: 13-7-2006 District & Sessions Judge,