2005 Supreme(Bom) 1319

IN THE HIGH COURT OF BOMBAY
G. J. Packaging Private Ltd
Versus
S. S. Sales
Decided Date: 27/09/05

Headnote:Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Process can be issued on basis of allegation - Adversary not unduly harassed - Magistrate has to personally examine complainant prior to taking decision - Legislation arranged such checking measure purposely. - All authorities lay down a principle that for deciding whether the allegations incorporated in the complaint are well founded and whether process can be issued on the basis of such allegations, it is necessary that Magistrate should personally examine the complaint before taking a decision whether or not to issue process against the accused. This is one of the checks introduced by the legislation to ensure that adversary is not unduly harassed. There can be no dispute about this principle.

       Negotiable Instruments Act, 1881 - Sections 138 and 142(a) - Dishonour of cheque - Issue of process - Lodging of complaint by power of attorney holder - Process challenged in recalling - Attorney holder cannot maintain complaint - If complaint is signed by person, not properly authorised such defect can be subsequently rectified. - Counsel for the respondents has rightly submitted that in the present case the complaint is filed in the name of the payee of the holder of power of attorney. Power of attorney holder has full knowledge of the transaction. Not only that the application filed by the petitioners for re-call of process shows that the power of attorney holder (who happens to be husband of sole proprietress of the payee) was dealing with this transaction from the beginning. He had been to Sendhwa for collecting the cheques and had presented the cheques for collection through Bank. Thus, in the present case, the Magistrate was justified in recording the statement of the power of attorney holder. On being satisfied that there are sufficient grounds for proceeding, Magistrate has issued process against the petitioners under Section 138 of N.I. Act. Therefore, no fault can be found with the impugned order.

       Negotiable Instruments Act, 1881 - Section 142(a) - Power of Attorney Act, 1882, Section 2 - Dishonour of cheque - Recalling of process - Complaint not filed by cheque holder - Section 142 does not lay down that complaint is to be filed by payee or holder in due course. - It is true that different view is taken in the matter of S.P. Sampathy, 2002 (4) All MR (J) 6 (AP). However, in view of the decisions of the Supreme Court, other High Courts and of the Court, in the view taken by the A.P. High Court in S.P. Sampathy, 2002 (4) All MR (J) 6 (AP), cannot be accepted. The settled position of law in this behalf is that power of attorney holder can file a complaint on behalf of the payee. In this view of the matter, contention of counsel for the petitioner that power of attorney holder cannot maintain the complaint on behalf of payee or holder in due course, cannot be sustained.

       Negotiable Instruments Act, 1881 - Sections 142(a) and 138 - Dishonour of cheque - Complaint lodged by Power of Attorney - Process issued but challenged - Recalling process - Dismissed - Contention - Attorney holder has no power to file complaint - Attorney holder cannot deposed on behalf of complainant - He can only appear as witness on behalf of complainant. - The Court, in the case of Rajasthan High Court, reported in AIR 1998 Raj 185, Ramprasad v. Hari Narayan and others, quoting the following observations of Rajasthan High Court :

       "A general power of attorney holder can appear, plead and act on behalf of the party, but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness-box on behalf of himself. To appear in a witness-box is altogether is a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff."

       Applying this principle to criminal law, the Court took a view that power of attorney holder of a party can file a complaint on behalf of the payee or holder in due course. However ,neither the Cr PC nor Negotiable Instruments Act contemplates that anyone can depose for and on behalf of the complainant. Therefore, power of attorney cannot depose on behalf of the complainant. This view is uphold by the Apex Court in the matter of Janki Vashdeo Bhojwani and others v. Indusind Bank Ltd. and others, reported in 2005 (3) Bom CR (SC) 846 : 2005 (2) SCC 217 : 2005 (1) Mh LJ 1170.