IMPORTANT POINT
A Power of Attorney Agent of payee or holder in due course of dishonoured cheque can competently initiate a prosecution u/s. 142(a) of the Negotiable Instruments Act, 1881.

Headnote:(i) Negotiable Instruments Act, 1881 Sections 138 and 142(a) - Prosecution for Dishonour of cheque - Can a Power of Attorney Agent or a person authorised in writing by payee or holder in due course, be competent to make a complaint in writing under 8. 142(a) of the Negotiable Instruments Act to facilitate valid cognizance being taken by the .Magistrate? (Yes)
       Held: The answer to the question posed, is that a Power of Attorney Agent of the payee or the holder in due course of the cheque, will be competent to make a complaint in writing under section 142(a) of the Negotiable Instruments Act, to facilitate valid cognizance being taken by the Magistrate. It makes no difference, if the Power of Attorney is executed by one individual in favour of another or executed by a company in favour of a particular person. This verdict, of competency of a Power of Attorney, to prefer a complaint on behalf of the payee or holder in due course of the cheque, to be taken cognizance of, will not preclude the accused from raising any valid defence open to them under law, including the validity of the Power of Attorney. I am not in these batch of cases, deciding whether a person authorised in writing by a payee or the holder in due course (individual or a company) would suffice to take cognizance, for that issue does not arise directly in these petitions. However, on that aspect, there is some indication available in the judgments of Janarthanam, J. of this Court in Mis. Gopalakrishna Trading Co., Rep. by its Manager P. Sivaram v. D. Baskaran (supra) and Ramakrishnan, J. of Kerala High Court in C.B.S Gramaphone Records and Tapes (India) Ltd. v. Noorudeen (supra). (Para 30)
       (ii) Negotiable Instruments Act, 1881 Section 142(a) - Prosecution for dishonour of cheque initiated by Power of Attorney Agent not stating that it is on behalf of payee or holder in due course - No authorisation also produced - Whether cognizance can be taken on such complaint? (No) - Quashed u/s. 482, Cr. P.C. (Para 32)
       (iii) Negotiable Instruments Act, 1881 Sections 138(c) and 142(a) - Part payment by drawer of cheque after issue of statutory notice by payee - Whether thereafter a prosecution u/s. 138 of the Act can be initiated? (Yes)
       Held: The next contention urged by Mr. T.K. Sampath that in view of a part payment having been made, after issue of statutory notice, the pending prosecution cannot be maintained, has no merit in it. Section 138(c) of the Act clearly shows, that in the event of the drawer of such cheque failing to make the payment of the said amount of money, a prosecution can be maintained. "Said amount of money" can only denote the amount of which the cheque or cheques were drawn and cannot relate to a part of it. If this argument were to be accepted, the intended utility of this provision, would stand defeated. (Para 33)
       (iv) Cr. P.C. 1973 - S. 482 - Negotiable Instruments Act, 1881 - Section 142(c) - Petition to quash prosecution on ground of limitation - Date appears to be altered - Has to be proved whether by mistake or intentional Prosecution cannot he quashed on such mixed question of law and fact requiring evidence. (Para 35)
       (v) Negotiable Instruments Act, 1881 Section 138 - Cr. P.C. 1973 - S. 219 - Five instances of dishonour of cheques clubbed together in a single prosecution whether contrary to S. 219, Cr. P.C. and liable to be quashed (No, however, respondent will have to choose on which of these five cheques, he would have the prosecution maintained) (Para 37)
       (vi) Negotiable Instruments Act, 1881 Section 142(a) - Wife payee or holder in due course of dishonoured cheque - Wife executing power of attorney in favour of husband to file complaint - Whether maintainable? (Yes) (Para 38)
       Result: Order accordingly. Cases referred:
       M/s. Gopalakrishna Trading Co., Rep. by its Manager P. Sivaram v. D. Baskaran; 1992(3) Crimes 1094.
       Ram Chandra v. State of Bihar; A.I.R. 1967 S.C. 349.
       Sambandarn and another v. G. Natesan; 1966 Cr. L.J. 554.
       AK. Roy v. State of Punjab; 1986 S.C. 2160.
       Vishwa Mitter v. O.P. Podar; A.I.R. 1984 S.C.5.
       AR Antulay v. RS. Nayak; AI.R 1984 S.C. 718.
       C.B.S. Gramaphone Records and Tapes (India) Ltd. v. Noomdeen; 1992(11) M.W.N. (Crl.) 160.
       Matha Plantations v. Dy. Commr. of Agrl. Income tax; 1983 K.L.T. 848.

JUDGMENT

Arunachalam, J. - All these Criminal original Petitions are disposed of together by a common order, for a single question of law, of vital importance, has been raised. Subsidiary questions argued in one or other of the matters, will be dealt with individually, after answering the main contention.

2. It will be better to state the facts in each one of these Original Petitions, before framing the question to be answered and embarking upon a discussion, on the same.

3. Crl. O.P. No. 8731 of 1992: Petitioners are A-1 and A-2 in C.C. No. 9123/91 pending on the file of Fifth Metropolitan Magistrate, Egmore, Madras. They art' alleged to have committed an offence punishable under section 138 of the Negotiable Instruments Act, on the basis of a private complaint initiated by respondent Venu. While seeking quashing of the pending Prosecution Mr. T.K. Sampath, petitioners' counsel, contended that an authorised representative will not be competent to initiate a prosecution under section 142 of the Negotiable Instruments Act and on such complaint, the learned Magistrate could not have taken cognizance.

4. The next contention was that in the event of a part payment being made by the drawer of the cheque, after issue of a statutory notice, a prosecution under section 138 of the Act cannot be initiated. This ground, though not taken in the memorandum, was permitted to be raised. The allegations in the complaint show that the respondent was at the relevant time working as an Accountant in Mis. Vandhana Chemicals, Madras, who is the payee in the instant prosecution. The cause title in the complaint shows K. Venu S/o M. Ekambaram representing Vandhana Chemicals, Madras as the complainant. Though in paragraph (3) of the complaint it has been stated that K. Venu was doing all sorts of business transactions on behalf of the above said chemical company as such and he was very well acquainted with the facts and circumstances of the case and further the Managing Director of the above said Chemicals had authorised him to file a criminal complaint against the petitioners before the competent court, no such authorization is available in the case records summoned from the trial court. The list of documents, stated to have been appended to the complaint, indicates in 51. No. 8, about the authorization letter issued by the Managing Partner.

5. Crl. O.P. No. 677/92: Petitioner Ramakrishnan is the sole accused in C.. No. 6436/91 pending on the file of the XV Metropolitan Magistrate, G.T. Madras. At the instance of B. Logaraj, payee represented by his Power of Attomey C. Balasundaram, petitioner is being prosecuted for having allegedly committed an offence punishable under Section 138 of the Negotiable Instruments Act. A true copy of the General Power of Attorney has been appended to the complaint. The contents of the complaint also clearly spell out, that the payee had authorised his Power of Attorney Agent C. Balasundaram, to file the impugned complaint.

6. Mr. K. Sridhar, learned counsel appearing on behalf of the petitioner, contended that Balasundaram was neither the payee nor the holder in due course and hence under section 142 of the Act, the trial Magistrate could not have taken cognizance of the offence alleged. He then pointed out from the original records summoned from the trial Magistrate, that certain corrections in the vakalat and sworn statement, with reference to the date, were apparent. In that background, he pointed out, the date of complaint written in ink, stating it as 21st of October, 1991, though the seal of the Magistrate bears the date 21st September, 1991. These differences in dates, according to the petitioners' counsel, are relevant for the purpose of calculating limitation.

7. Crl. O.P. No. 5770/92: Petitioner Vasumathi Mills (private) Ltd., Coimbatore, is the sole accused in S.T.R. No. 1160/91 pending on the file of Judicial Magistrate No. II, Coimbatore. Prosecution against the petitioner has been initiated by Eastern Co

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IMPORTANT POINTA Power of Attorney Agent of payee or holder in due course of dishonoured cheque can competently initiate a prosecution u/s. 142(a) of the Negotiable Instruments Act, 1881.

IMPORTANT POINT
A Power of Attorney Agent of payee or holder in due course of dishonoured cheque can competently initiate a prosecution u/s. 142(a) of the Negotiable Instruments Act, 1881.