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Judiciary

Cheque Bounce Complaint Filed By Power Of Attorney Is Maintainable In Law, Reiterates SC [Read Order]

By LawStreet News Network      03 October, 2018 12:00 AM      0 Comments
Cheque Bounce Complaint Filed By Power Of Attorney Is Maintainable In Law, Reiterates SC [Read Order]

The Supreme Court in the case of SK Tamisuddin v. Joy Joseph Creado has reiterated that a complaint filed by the Power of Attorney shall be maintainable in law.

A Bench comprising of Justice Ranjan Gogoi, Justice Navin Sinha and Justice KM Joseph have considered the decision of this court in A.C. Narayanan v. State of Maharashtra.

In this case, a complaint was filed by Sairabee through her Special Power of Attorney Holder, SK. Tamisuddin, under Section 138 of the Negotiable Instruments Act, 1881 read with Section 420 IPC, 1860. Sairabee died while the trial was in progress. Thereafter, Tamisuddin after the death of Sairabee filed an application before the learned trial Court to continue the prosecution as her legal heir (son). The learned trial court allowed the application.

However, in a quashing petition, the High Court quashed the proceedings stating that the initiation of the complaint by the Special Power of Attorney of Sairabee was invalid and not permissible.

On appeal filed by the appellant in the Supreme Court, the Bench held that we have considered the decision of this Court in A.C. Narayanan vs. State of Maharashtra and Another, wherein this Court has clearly held that a complaint filed by the power of attorney would be maintainable in law. If that is so, the initial complaint filed by the appellant on behalf of Sairabee as the complainant would not be invalid in law as held by the High Court in the order under challenge. After the death of Sairabee, the application filed by the appellant was to continue the criminal prosecution as the legal heir of the deceased Sairabee, the High Court seems to have understood this application to be for continuance of the criminal prosecution in his capacity as a Power of Attorney. The competence of the legal heir of a person aggrieved to continue a criminal complaint is not in doubt. The High Court therefore, in our considered view, ought to have allowed the continuance of the proceedings as prayed by the appellant and ought not to have quashed the proceedings as it has been done.

A.C. Narayanan v. State of Maharashtra:-

In the case, the Supreme Court observed that from a conjoint reading of Sections 138, 142 and 145 of the N.I. Act as well as Section 200 of the Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the Court and to examine him upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. For the purpose of issuing process under Section 200 of the Code, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I. Act. It is only if and where the Magistrate, after considering the complaint under Section 138 of the N.I. Act, documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness(s) is required, the Magistrate may call upon the complainant to remain present before the Court and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.

In the light of the discussion, we are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the N.I. Act. An exception to the above is when the power of attorney holder of the complainant does not have a personal knowledge about the transactions then he cannot be examined. However, where the attorney holder of the complainant is in charge of the business of the complainant-payee and the attorney holder alone is personally aware of the transactions, there is no reason why the attorney holder cannot depose as a witness, the Bench added.

The Bench has consequently allowed the appeal and set aside the order of the High Court.



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