S.R. Mahesh Kumar vs K.R. Krishnamoorthy

S. Palanivelu, J.—The petitioner is the accused in S.T.C. No.236 of 2005 on the file of the Judicial Magistrate No. 1, Madurai. The

respondent is the complainant which he has laid on the strength of a cheque dated 7.11.2002 issued by the petitioner for a sum of Rs. 50,000/-.

When the cheque was presented for collection through his Bankers it was returned with an endorsement ''funds insufficient'' hence the

respondent issued statutory notice to the petitioner calling upon him to pay the cheque amount within 15 days time from the date of receipt of the

notice. Since he had not repaid the amount, the respondent filed a complaint before the above said Court through his power agent one K.R.

Krishnamoorthy.

At the time of filing the complaint, it did not accompany the original power of attorney deed, however Xerox copy of the same was enclosed.

Hence the said Court returned the complaint with an endorsement to the effect that the original power of attorney deed should be produced. On

19.3.2003 the complaint was represented along with the original power of attorney deed.

Mr. Gandhi, learned Counsel for the petitioner would strenuously contend that as per the allegations in the complaint the cause of action arose

on 5.12.2002 and hence on or before 5.1.2003 the complaint should have been represented along with the original power of attorney deed and

hence the failure on the part of the complainant to represent beyond the said date leaving the matter to get time barred is illegal and the Court

should not have taken cognizance of the matter.

Mr. T.R. Subramanian the learned Counsel for the respondent conversely would contend that even though the original power of attorney deed

was not produced along with the complaint at the first instance, the subsequent production of the same on 9.3.2003 will not lead to any irregularity

or illegality and the cognizance taken by the Judicial Magistrate is legally valid.

The learned Counsel for the petitioner would garner support from a decision of this Court reported in M.A. Abdul Khuthoos v. Ganesh & Coy

Oil Mills I (2000) BC 428 : 1999 (3) Crimes 83 (Mad.), wherein it is held that in case if the complaint was returned which was not bearing the

signature of the complainant and it was represented with the signature beyond the period one month from the date of commencement of cause of

action the proceedings would not stand and they are liable to be quashed.

The learned Counsel for the respondent would argue that the above said decision is not at all applicable to the facts of the present case for the

reason that in this case the facts are distinguishable. He submits that in the case on hand there are no such circumstance where a complaint was

presented without signature of the complainant but it was duly signed by the power of attorney and the complaint was filed along with xerox copy

of the power of attorney deed. It is further submitted that the subsequent production of the power of attorney deed along with the complaint would

cure the defect and it is not illegal. He placed reliance upon a decision of a Division Bench of this Court reported in K. Gopalakrishnan Vs.

Karunakaran rep. by the Power of Attorney Holder, , in which it is observed as follows:

...It is therefore clear that even though the General Power of Attorney at initial stage failed to produce the deed of power of attorney or the

affidavit of the complainant in proof of execution of power of attorney, the same can be rectified by producing the same at a later stage of the

proceedings as and when the validity of the power of attorney is questioned by the accused and the Court could then be called upon to decide the

genuineness....

As per the findings given in the above said decision, even though the power of attorney deed was not presented at the initial stage, the defect

could very well be rectified even on the occasion of subsequent proceedings of the case and if the accused so desires, he may very well agitate the

validity of the power of attorney deed at the time of trial.

Following the above said decision, in the present case it is to be held that the failure on the part of the complainant to produce the power of

attorney deed at the time of original presentation of the complaint will in no way affect the legal claim of the complainant.

The learned Counsel for the respondent also cited another decision of a Division Bench of this Court reported in A. Vinayagam and 3 Ors. v.

Dr. Subash Chandran and Anr. II (2000) BC 227 : 2000 DCR 250, wherein legal importance of Sections 138 and 142 of the Negotiable

Instruments Act have been analysed and clarified in extenso. While observing about the legal import of the terms contained in the above said

provisions, the Division Bench has rendered finding to the effect that the requirement of the statute is presentation of the complaint before the date

of limitation and the question of taking cognizance by the Judicial Magistrate would arise only subsequently and if the complaint was presented

before the Court within time prescribed even though if it is defective it would save the limitation. The operative portion of the decision is as follows:

...Section 142 of the Negotiable Instruments Act is as under:

Cognizance of Offences.- 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;

(b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the Proviso to Section 136;

(c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable u/s 138.

The wording in Clause (b) is important and it suggests that the complaint has to be made within one month of the date on which the cause of action

arises under Clause (c) of Proviso to Section 138. That Section does not speak of either cognizance or issuance of process. If Clause (b) is read

along with Clause (a), it only suggests that a Court shall not take cognizance of an offence punishable u/s 138 unless the complaint in that behalf is

made within one month of the date of which the cause of action arises. The trust is only on ""making the Complaint"" meaning thereby ""presenting it

to the Magistrate"". The concept of its cognizance or the concept of issuance of process on the basis of such complaint are simply not to be found in

the whole section. It is clear position of law that once the complaint is filed within time contemplated u/s 142(b), the cognizance could be taken

later. In all Section 142(b) mandates only that the complaint should be made (filed) within one month of the date on which the cause of action

arises under Clause (c) of Proviso to Section 138. The limitation is undoubtedly provided only for filing the complaint and not for taking its

cognizance or even for issuing the process. There is nothing in that Clause indicating or bringing fetters on the power of the Magistrate to take

cognizance on a complaint which has been filed with limitation i.e. within thirty days of the date on which the cause of action arises under Clause (c)

of Proviso to Section 138. Such fetters may come by the general law of limitation contained in Section 468 of the Code of Criminal Procedure, but

that is not the case here. We are not on the subject of cognizance of the offences, but on subject of making the complaint and that would be only

when the complaint is presented to the Magistrate.

The above said authoritative judicial pronouncements on this subject have thrown much light on the subject. The corollary thereof, even though

the complaint does not accompany original power of attorney deed and even if was filed along with the copy of the same, in case, if the original

presentation is within the time prescribed by law, then there could be no question of bar of limitation. It is also added that even if the original power

of attorney deed is presented along with the complaint which is being represented beyond the prescribed time of limitation it is not at all illegal.

Hence, I do not find any merits in this petition and the petition suffers dismissal.

The petition is dismissed.

The petitioner is at liberty to raise any other contentions on his behalf before the Trial Court at the time of final hearing of the case.

No costs.

Consequently, connected M.P. is dismissed.