Interpretation and application of Section 142(a) of the Negotiable Instruments Act, 1881, in the context of filing complaint petitions and the eligibility criteria for taking cognizance of offences under the statute.

ORDER

1. Delay in filing counter affidavit is condoned. Leave granted. Interpretation and/or application of Section 142(a) of the Negotiable Instruments Act, 1881, ("NI Act") is in question in this appeal which arises out of a judgment and order dated 12.8.2005 passed by a learned Single Judge of the High Court of Judicature at Bombay.

2. The basic fact of the matter is not in dispute. Several cheques on different dates were issued by the appellant herein which were dishonoured. The complainant executed a Special Power of Attorney on or about 28.11.1997, in favour of one Smt. Doreen Shaikh. She filed complaint petitions in the Court of Additional Chief Metropolitan Magistrate, Bandra, Mumbai. The complaint petitions were filed in the name of the respective payees of the cheques. She also filed affidavits in support of the averments made in the said complaint petitions. Cognizance of offence under Section 138 of the NI Act was taken against the appellant. Summons were issued.

3. Questioning the order issuing summons by the learned magistrate in exercise of his power under Section 204 of the Code of Criminal Procedure, appellant herein filed criminal application before the High Court of Judicature at Bombay, inter alia contending that the complaint petitions filed by the Power of Attorney Holder was not maintainable and relying thereupon or on the basis thereof the learned magistrate could not have issued summons. The said contention has been negatived by the High Court in its impugned judgment. A.C. Narayanan v. State of Maharashtra, Criminal Application No. 803 of 2002. D/d. 12.08.2005 (Bom.).

4. In the aforementioned premises interpretation of Section 142 (a) of the NI Act comes up for consideration before us. We may notice that in M.M.T.C. and Anr. v. Medchl Chemicals & Pharma (P) Ltd. and Anr., 2002 (1) SCC 234], a Division Bench of this Court has opined :

"11. This Court has, as far back as, in the case of Vishwa Mitter v. O.P. Poddar,: 1983 4 SCC 701) held that it is clear that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. It has been held that no court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. It has been held that if any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, then the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute. In the present case, the only eligibility criteria prescribed by Section 142 is that the complaint must be by the payee or the holder in due course. This criteria is satisfied as the complaint is in the name and on behalf of the appellant Company."

5. However, in a later judgment in Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors., 2005 (2) SCC 217, albeit in a different context, another Division Bench of this Court overruled the judgment of the Bombay High Court in Pradeep Mohanbay v. Minguel Carlos Dias, 2000 (1) Bom. L.R. 908, inter alia opining as follows :

"13. Order 3 Rules 1 and 2 CPC empowers the holder of power of attorney to `act' on behalf of the principal. In our view the word `acts' employed in Order 3 Rules 1 and 2 CPC confines only to in respect of `acts' done by the power-of-attorney holder in exercise of power granted by the instrument. The term `acts' would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some `acts' in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal is entitled to be cross-examined."

"17. On the question of power of attorney, the H