2008 Supreme(Bom) 156

BOMBAY HIGH COURT
(Aurangabad Bench)
Before : V.R.KINGAONKAR,J.
Mr.Roy Joseph Creado and others .. Applicants
Versus
Sk.Tamisuddin S/o Late Sk.Nazir Ahmed, and others .. Respondents
Criminal Application No. 1653 of 2003,
decided on 1st February, 2008.

Headnote:Negotiable Instruments Act, 1881 - Sections 138 and 142-Criminal Procedure Code, 1973, Sections 2(d) and 200-Dishonour of cheque-Complaint-Complaint means written or oral accusation made to Judicial Magistrate-Word "complaint" not includes FIR-Section 142 of Act supersedes general definition of word ’complaint’ as given in Section 2(d) of Code-Verification of complaint essential under Section 200 of Code before taking cognizance of offence.-In the above backdrop, definition of the word "complaint" as enumerated in Section 2(d) of the Cr PC may be noticed. The word "complaint" means a written or oral accusation made to Judicial Magistrate to start appropriate proceedings against a known or unknown person as per provisions of the Code. It does not include report given to Police (FIR). So, the complaint may be oral. The purpose of complaint is to move the Judicial Magistrate for setting Criminal Law in motion. However, Section 142 of the Negotiable Instruments Act specifically deals with the expression "complaint" filed under the N.I. Act. A plain reading of Section 142 of the NI Act shows that the cognizance of any offence punishable under Section 138 of the NI Act cannot be taken unless there is complaint, in writing made by the payee or by holder of the cheque in due course. Section 142 commences with non-obstante clause. Therefore it supersedes the general definition of the word "complaint" as given in Section 2(d) of the Code of Criminal Procedure. The legal requirements of a valid complaint for the purpose of NI Act are :

       (a) There has to be a complaint in writing regarding commission of offence :

       (b) The complaint must be made by the payee or one who is holder of the cheque in due course :

       (c) The allegations in the complaint shall make out a prima facie case of cognizable offence.

       At his juncture it may be said that verification of the complaint under Section 200 of the Cr PC is necessary. The purpose of such verification is to determine prima facie truth into the allegations made in the complaint. The verification of complaint is essential under Section 200 of the Cr PC before taking cognizance of the offence not only with a view to find out prima facie truth but also in order to identify the persons who, in case the prosecution is found to be frivolous or mala fide, would be liable to answer the charge of perjury or to indemnify the accused persons. In other words, when the complainant gives statement before the Judicial Magistrate, in support of his complaint, it is implicit that if certain statements are found to be false then identity of perjurer is explicitly made clear. So also if the complaint is found to be malicious and frivolous then action for recovery of compensation can be taken against such a complainant.

       Negotiable Instruments Act, 1881 - Sections 138 and 142-Criminal Procedure Code, 1973, Sections 204 and 256-Death of complainant-In dishonour of cheques-Respondent demanded continuation of prosecution-On basis of special power of attorney-Held- Issuance of process is illegal and improper.-There are cases and cases. Each case needs to be examined on the basis of the fact situation obtained therein. In the case in hand, the complaint filed by respondent-Sk. Tamisuddin was defective because it was not signed by the complainant Smt. Saira. The defect was curable during her life time. She could have been asked to sign the complaint. That was not done. The complaint is verified by the respondent although, he did not State in clear words that he is not only Special Power of Attorney holder but has the full knowledge of the facts in which the cheque was issued by the applicants in name of Smt. Saira, as a result of liability to discharge the legal debt or money due to her. It appears that gist of the complaint is reproduced as the verified statements of Sk. Tamisuddin. The copy of special power of attorney does not show that the respondent did undertake the liability to indemnify the accused persons if the complaint was found to be frivolous or false.

       Negotiable Instruments Act, 1881 - Sections 138 and 142-Criminal Procedure Code, 1973, Section 256-Death of complainant-In dishonour of cheques-Respondent demanded continuation of prosecution-On basis of special power of attorney-Held-Both the impugned orders are improper and illegal.-After the death of Smt. Saira, the respondent obtained permission to continue the prosecution as her Special Power of Attorney. He did not seek his substitution as legal heir of the deceased. Secondly, when the initial complaint itself was defective and process could not be issued thereunder, there arise no question of substitution of the complainant under Section 256 of the Cr PC.

       Negotiable Instruments Act, 1881 - Sections 138 and 142-Dishonour of cheque-Complaint for-Not signed by complainant-Power of attorney holder signed cheque-Verification done by P.O.A. holder-Vakilpatra also signed by P.O.A. holder-Issuance of process on basis of such complaint illegal.-Another significant fact which can be noticed on perusal of the complaint is that the complaint is signed by the special power of attorney holder Sk. Tamisuddin as a complainant. The complaint is not signed by deceased Smt. Saira. The complaint is verified by Sk Tamisuddin as if he is the original complainant. The verified statement which purportedly is of complainant Smt. Saira is signed by Sk. Tamisuddin in her stead, being special power of attorney. Obviously, the complaint is not signed and verified by deceased Smt. Saira. The Magistrate issued process on the basic of such a verified statement of the special power of attorney. No attempt was made to call upon deceased Smt. Saira to sign the complaint. The vakilpatra was also filed by Sk. Tamisuddin as special power of attorney holder of complainant Smt. Saira.

       Power of Attorney Act, 1882 - Precedent direction.-Judicial officer should read the judgment in entirety not Head Notes that are drawn by staff member-Held, both the Courts below have failed to undertake such exercise before making reference to authorities.

       This Court has noticed, of late, the practice adopted by many Judicial Officers to simply refer the decision of this Court or the Apex Court without examining whether the ratio is really applicable to the given case. So also, many Judicial Officers follow practice of reproducing the headnotes/placitum from the reported precedents. The Judicial Officers need to understand that the head notes are drawn by editors/staff members of the law Journals. It is necessary to read the precedent in entirety. The Judicial Officers is required thereafter to cull out the ratio of the authority. The matching of facts and circumstances would then enable the Court to examine whether such ratio is applicable to the case with which the Court is required to deal with.