Kewal Kumar Jaggi vs Vinod Kumar Sahu and Smt. Shradha Sahu

S.C. Sinho, J.

This order shall govern the disposal of aforesaid two M.Cr.C. u/s 482 of Cr.PC because the same legal point (complaint u/s 138 of Negotiable Instrument Act was signed by non-applicant advocate on basis of memo of appearance duly signed by non-applicants) is involved in both the cases. Learned JMFC Jabalpur in R.T. No. 29/2003 and 193/2002, dismissed the objection raised by applicant on the ground of maintainability.

These complaints u/s 138 of Negotiable Instruments Act 1881 (hereinafter referred as to ''Act 1881'') was filed by respondents with the signature of his Advocate Shri Surendra Verma. Applicants filed an application for quashing the complaint on the ground these complaints have been filed without the signature of the complainant and they are signed by their Advocate on the basis of memo of appearance. As the learned Magistrate in impugned order dated 12-12-2005 has held that he has already taken cognizance therefore he cannot go behind orders. Feeling aggrieved these petitions u/s 482 of Cr.PC are filed before this Court.

The only disputed question before me is that what will be the fate of such complaint which has been signed and presented by a complainant Advocate instead of complainant.

Learned Counsel for the applicant Shri J.K. Verma argued that these complaints were filed before JMFC with the signature of respondents/ complainants Advocate and while these complaints were filed even complainant in person was not present before the Court and they appeared before Court for the first time when their statements u/s 200 was recorded. These complaints are hopelessly time barred as well as not signed by the complainants hence the impugned order regarding taking cognizance u/s 204 passed by Court below be quashed.

Shri Surendra Verma, learned Counsel for the respondents/ complainants drawn my attention that there is no particular formate of a complaint. A complaint presented to the Magistrate containing allegation that an offence has been committed and ending with a prayer that culprit be suitably dealt with is a complaint. He further argued that complaint can be made orally as provided in definition of complaint in Cr.PC 1973 Section 2(d). However, learned Advocate of Respondents requested that he is willing to cure the defect, if any.

Both the Advocates were heard at length.

In view of the above arguments it will be proper to reproduce Section 2(d) of Cr.PC 1973, about definition of complaint:

''Complaint'' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

He was duly engaged in both the cases and memo of appearance was signed by non-applicant.

However, further Section 142(a) of the Act, 1881 reads as under:

Section 142(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.

Thus, it is clear that the complaint u/s 138 of the Act 1881 should be in writing. Further it is settled position that power of attorney of payee or a holder in due course can file complaint. (Relied on S.P. Sampathy v. Manju Gupta 2002 Cr.LJ 2621. If a power of attorney holder can file a complaint on behalf of complainant so can Counsel can also act on behalf of his client. If this capacity is not recognized, it will cause inconvenience and loss to the parties as well as delay the progress of proceedings in Court. It is no where held that complaint shall be filed with signature of the complainant. According to Section 142, the complaint should be in writing and legislature did not emphasis that such complaint should be also signed by the complainant. But it does not mean that the complaint can be filed without signatures or there is no necessity of putting the signatures of complainant or his advocate but not much stretch is provided on signatures.

Further it is held by the Apex Court in the case of Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh and Another, .

Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are:

(i) Where the stature prescribing the procedure, also prescribes specifically the consequence of non-compliance.

(ii) Where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it.

(iii) Where the non-compliance or violation is proved to be deliberate or mischievous.

(iv) Where the rectification of defect would affect the case on merits or will affect the jurisdiction of the Court.

(v) In case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.

It is clear that no prejudice has been caused to the applicants because the complaints u/s 138 of Act 1881 were signed by complainants Advocate instead of complainant. Further this Court in Smt. Shashi Shrivastava Vs. Jagdish Singh Kushwah, where the complaint u/s 138 of Act 1881 was filed without any signature even then this Court permitted complainant to cure the defect with a remedy to put his signature for curing the defect within 15 days and further directed that this remedy will not become barred by time merely on this technical ground based on mistake. Whereas non-applicant cases are on better footing. Learned Advocate of complainant has filed these complaints on the basis of Vakalatnama or memo of appearance duly signed by non-applicants will not make any difference till it is challenge by the non-applicants.

On going through the relevant portion of memo of appearance duly signed by non-applicant is as under:

I/we have been duly engaged, instructed and authorised by non-applicants". The four words, "duly engaged, instructed and authorized" are very important. Every word in the memo of appearance has to be given due weightage and it makes clear that non-applicant has made a clear and loud declaration about engagement and authorization of Shri Surendra Verma on their behalf.

Authorise means- To empower; to give a right or authority to act, to endow with authority or effective legal power, warrant, or right, to permit a thing to be done in the future, it has a mandatory effect or meaning, implying a direction to act.

It is well settled that the inherent power is exercised for the limited purpose very sparingly where there is an apparent miscarriage of justice.

Consequently, the M.Cr.C. No. 285/06 and M.Cr.C. No. 442/06, devoid of any merit and are dismissed.