IMPORTANT POINT
Complaint u/s 138 of Negotiable Instruments Act by payee through power of attorney is Valid and legal. Once Magistrate happens to take cognizance offence u/s 138 of Negotiable Instrument Act, death of payee of cheque has no bearing on trial.

Headnote:Negotiable Instruments Act, 1881 - Sections 138 and 142 - Cognizance of offence only on a complaint in writing made by payee holder - in due course - Complaint by payee or through power of attorney holder - Cognizance taken on such complaint suffers no illegality.
       (ii) Negotiable Instruments Act, 1881- Section 138 - Complaint for offence of bouncing of cheque - Death of complainant after court had taken cognizance - Death of payee of cheque has no bearing on tria1.
       Held: The complaint in this case was lodged on 7-7-1994. The learned Metropolitan Magistrate has issued process against the respondent on the same day, i.e., on 7th July, 1994. Once the learned Metropolitan Magistrate issues process it is quite obvious that he has taken cognizance of the offence. Once the Magistrate happens to take cognizance, of the offence, the death of the payee of the cheque has no bearing on the trial in question. Had there been the death of the payee of the cheque before the Magistrate had taken cognizance of the offence, then there would have been a question as to whether cognizes of the offence could be taken be if that question does not arise now in view of the fact that the Magistrate has already taken cognizance of the matter Once cognizance of the offence has been taken by the Magistrate, the trial will have its end after following due process and procedure as laid down in the Code of Criminal Procedure. There is no provision in the Code of Criminal Procedure or in the Negotiable Instruments Act laying down that on, account of death of the payee the trial must abate, when there is no such provision either in the Code of Criminal Procedure or in the Negotiable Instruments Act, then merely because the original complainant payee has died, there could not be abatement of the proceedings. The legal heirs of the original complainant are entitle to come forward and ask for their substitution in place of the complainant so as to proceed further with the trial. (Para 15)
       Result: Revision allowed.

JUDGMENT

S.D. Pandit, J. - The original complainant in criminal case No. 2203 of 1992 on the file of the learned Metropolitan Magistrate. Court No.9. Ahmedabad has filed the present Revision Application to challenge the order passed by the learned Additional City Sessions Judge. Ahmedabad in Criminal Revision Application No. 296 of 1996 on 7th July; 1997.

2. Revision Applicant Anil G. Shah is the son of late G.L. Shah and he was also a power of attorney holder of G.L. Shah when he filed criminal case No. 2203 of 1994 against the respondent for the alleged offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881. (For short "the Act"). The said criminal case No. 2203 of 1994 was filed on 7th July, 1994 and the description of the complainant in the complaint is given as under:

"G.L. Shah, through authorised representative and constituted attorney Anil G. Shah, "sanskrut"

2nd floor, Navrangpura, Ahmedabad."

From the above description of the said complainant it is quite clear that the complaint is lodged by the said G.L. Shah and the said complaint was filed and signed by his power of attorney holder namely Anil G. Shah. It was the allegation of the complainant in the complaint that the respondent had taken loans from time to time and towards the said loan he was owing Rs. 1.47.600/- (learned advocate for the revision applicant says that there is a typing mistake in the complaint and the amount is Rs. 14,76.009/- and that necessary application would be filed before the learned Metropolitan Magistrate to correct the said typing mistake). The cheque which is produced along with the complaint clearly shows that the amount is Rs. 14.76.000/-. Towards the said amount of Rs. 14.76.000/- the respondent had given cheque bearing No. 613783 dated 1-2-1994 drawn on Canara Bank. Bombay. When ti1e said cheque was presented by the complainant for its realisation, it was returned on 20-5- 1994 with an, endorsement "funds insufficient". Thereafter, the complainant had issued the legal notice as contemplcited by Sec. 138(B) of the Act on 13-5-1994. Inspite of the service of the said legal notice, as there was no payment of the amount of the cheque this private complaint is filed on 7th July. 1994.

3. The learned Magistrate recorded the statement on oath of the complainant-constituted attorney on the same day and was then placed, to issue process against the respondent under Sec. 138 of the Act. 4. On his appearance, he gave an application Exh. 4 before the learned Magistrate raising a contention therein that in view of the provisions of Sec. 142 of the Act, the learned Magistrate was not justified in taking a cognizance of the said complaint as the complaint was not filed personally by the payee of the cheque. The learned Magistrate was pleased to reject the said contention. Thereafter, the respondent preferred Criminal Revision Application No. 296 of 1996 before the City Sessions Court. It was the main contention of the revision appellant i.e., respondent before me in the said Criminal Revision Application before the learned Sessions Judge that in view of the provisions of Sec. 142 of the Act and the decision of this Court in the case of Dipendra G. Choksi and Others v, Kailashchandra C. Dhoot and Anr.1 the learned Magistrate ought not to have taken cognizance of the complaint and that the complaint deserves to be dismissed. The revision applicant before me had urged before the learned Sessions Judge that in the decision of this Court as regards lodging of the complaint by the company and there was no consideration of any question in that case as to whether the complaint lodged by the power of attorney holder of a payee was a proper complaint and whether the cognizance of such a complaint could be taken under Sec. 142 of the Act or not and it was found that the complaint whose name is described as a complainant in the complaint was not a payee of the cheque and as the complaint did not disclose any where that the complainant was

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IMPORTANT POINTComplaint u/s 138 of Negotiable Instruments Act by payee through power of attorney is Valid and legal. Once Magistrate happens to take cognizance offence u/s 138 of Negotiable Instrument Act, death of payee of cheque has no bearing on trial.

Cases Referred (2)

IMPORTANT POINT
Complaint u/s 138 of Negotiable Instruments Act by payee through power of attorney is Valid and legal. Once Magistrate happens to take cognizance offence u/s 138 of Negotiable Instrument Act, death of payee of cheque has no bearing on trial.