B. Mahendra Jain vs C.K. Mohammed Ali

M. Karpagavinayagam, J.—The petitioner is the power of attorney holder of his father Babulal Jain, filed a complaint on behalf of his father,

against the respondent Mohammed Ali for the offence punishable u/s 13 8 of Negotiable Instruments Act.

The learned Magistrate, after recording the sworn statement, dismissed the complaint on the simple ground that the complainant Babulal Jain

cannot be represented by a power of Attorney holder, in view of the wording contained u/s 142 of Negotiable Instruments Act to the effect that

''No court shall take cognizance of any offence punishable u/s 138 of Negotiable Instruments 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''.

To arrive at this conclusion, the learned Magistrate derived support from the judgment of this Court reported in 1997 (1) L.W. (Crl) 297

(Sagayadurai and Others v. J.D. Electronics). This order is being challenged in this revision. 1997 (1) L.W. (Crl) 297 supra is the authority for the

proposition which is given below:

In this case, there is no dispute that the complainant is a manager representing the company which is a firm. The manager of the company is very

well connected with the affairs of the partnership firm on whose behalf the complaint has been made. In these circumstances, it cannot be stated

that the manager representing the company shall obtain a special permission or authorisation from the company and file it along with the complaint.

From the provision of Section 141 of the negotiable instruments Act, it is clear that the Court is empowered to take cognizance if the complaint is

preferred by the firm, a company u/s 138 of Negotiable Instruments Act, through the Manager of the Company.

The observation as contained in the above stated decision, in my view, would not be applicable to this instant case. There, the question arose

whether a manager of a Company can represent on behalf of the complainant the firm in a proceedings initiated for the offences punishable u/s 138

of Negotiable Instruments Act. But, in the instant case, the question posed is whether a power of Attorney Agent could file a complaint, on behalf

of the complainant, the payee or as the case may be, the holder in due course of the cheque.

Unfortunately, the Learned Magistrate has not gone into this question and came to the conclusion that the Power of Attorney Agent cannot

maintain the complaint on behalf of the payee, as he cannot be considered to be a payee or holder in due course of the cheque.

The question which has to be decided in this petition is whether the Power of Attorney agent or a person authorised in writing by the payee or

the holder in due course of the cheque be competent to make a complaint, in writing, u/s 142(a) of the Negotiable Instruments Act.

To consider this question, it becomes necessary to read the Section 142(a) of the Negotiable Instruments Act. Section 142 - Notwithstanding

anything contained in the Code of Criminal procedure, 1973 (2 of 1974)-

(a) No Court shall take cognizance of any offence punishable u/s 138 except upon a complaint, in writing, made by the payee or, as the case may

be, the holder in due course of the cheque.

It is clear that notwithstanding anything contained in the Code of Criminal Procedure, this special enactment contemplating the procedure in

which the complaint could be filed alone would prevail. Therefore, the complaint shall be in writing as provided in Section 142(a) made by the

payee or as the case may be, the holder in due course of the cheque. But, it is to be noted that there is no prohibition to the Power of Attorney

Agent for acting on behalf of the payee or the holder in due course of the cheque.

In this context, it will be relevant to refer to decision of Ram Chander Prasad Sharma Vs. State of Bihar and Another, . That was the case

where the Supreme Court was interpreting the words ''person aggrieved'' within the meaning of the Indian Electricity Act. Section 50 of the Indian

Electricity Act as referred in the said judgment reads thus:

No prosecution shall be instituted against any person for any offence against this Act or any rule, license, or order thereunder, except at the

instance of the Government or a Electrical Inspector or of a person aggrieved by the same.

The prosecution in that case was commenced with the charge sheet submitted by the police. It was contended that the submission of a charge

sheet by the police was not the same thing as institution of prosecution at the instance of the Government or Electrical Engineer or of a person

aggrieved by the same. In the context, the Supreme Court has observed as follows:

It is true that Bhattacharya was not himself a ''person aggrieved'' and that the ''person aggrieved'' was the P.E.S. Co. 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, act on behalf of P.E.S. Co. in all legal proceedings.

The evidence shows that it was at his instance that Bhattacharya launched the first information report, 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.

This decision of Supreme Court will be an authority for the proposition that the power of attorney agent duly constituted could act on behalf of

a person aggrieved. The object of the pro-vision of Section 142-A of the Negotiable Instruments Act provided for making of a complaint by the

payee or as the case may be, the holder in due course of the cheque appears to be that the person aggrieved has to set the law in motion.

Therefore, if the payee or the holder in due course initiates complaint through their power agents, it cannot be stated Section 142(a) of the Act has

been violated.

It is no doubt true, the wordings contained in Section 142(a) would provide eligibility criteria to the effect that the complaint should be made

only by certain categories of persons. But, this eligibility does not get affected, if a power agent initiates a private complaint on behalf of those

categories of persons, as contemplated u/s 142(a). because the basic concept of power of attorney agent as interpreted in various decisions is that

the power of attorney agent would step into the shoes of those categories of persons. Once a power agent makes a complaint for all practical

purpose, it is the payee or the holder in due course of the cheque who is the complainant.

The words ''in writing'' mentioned in Section 142(a) of the Negotiable Instruments Act cannot be taken to mean that it must be in writing by the

payee himself or the holder in due course of the cheque himself, for, if it is made by the power of attorney agent, it tantamounts to complaint being

made by the payee or the holder in due course of the cheque. As such the words in Section 142(a) of the Negotiable Instruments Act does not

provide prohibition or exclusion from the complaint being initiated by the power of attorney agent or by the payee or by the holder in due course of

the cheque.

There cannot be any dispute that when the law specifies that an action should be taken in a particular way, it should be so done in that way and

not in any other way. Once there cannot be any doubt that the power of attorney holder is virtually the payee himself or the holder in due course, it

cannot be construed that the act of filing a complaint by a power of attorney holder is done in a way not contemplated by Section 142(a) of the

Act.

Therefore, in my view, the power of attorney agent of the payee or a holder in due course of the cheque, who is an individual will be

competent to make a complaint in writing u/s 142(a) of the Negotiable Instruments Act to facilitate the valid cognizance being taken by the

Magistrate. The lower Court is under the misconception that the Manager alone can be, on behalf of the company, permitted to file a complaint,

but not in the case of the individual, through power of attorney.

This question was earlier raised in this Court and in a batch of cases reported in 1994 1 L.W. (Crl.) 34, Arunachalam J, as he then was, has

elaborately considered this aspect and held that the Power of attorney agent could file a complaint on behalf of the individual complainant and that

is valid and the valid cognizance could be taken u/s 142(a) of the Negotiable Instruments Act.

In the instant case, the petitioner is not only the power of attorney holder, but also, he seems to be the son of the complainant. Therefore, I am

of the considered opinion that the complaint filed by the power of attorney agent i.e. the petitioner is perfectly valid and as such, the impugned

order passed by the lower Court suffers from patent illegality which is liable to be set aside and accordingly, the same is set aside.

In this case, even at the admission stage, this Court has thought it fit as requested by the counsel for the petitioner, not to issue notice to the

accused, the respondent herein, since the impugned order was passed by the Lower Court, even at the pre-cognizance stage. Therefore, this

Court sought the help of the Public Prosecutor who assisted this Court before passing this order, and I record the valuable assistance given by Mr.

N.R. Elango, Government Advocate, representing the Public Prosecutor.

The lower Court is directed to take up the case on file and issue summons to the respondent accused and dispose of the same, as

expeditiously as possible.

With the above observation, this revision is allowed.