IMPORTANT POINT
Complaint under Section 138 Negotiable Instruments Act can be signed and filed by power of attorney of payee and on sworn statement of attorney summoning order can be passed.

ORDER

M. Jeyapaul, J.—Cri. O.P. No. 1354 of 2002 is filed against C.C. No. 7611 of 1998 on the file of the learned II Metropolitan Magistrate, Egmore.

2. Cri. O.P. No. 1355 of 2002 is filed against C.C. No 7607 of 1998 on the file of the learned II Metropolitan Magistrate, Egmore.

3. Cri. O.P. No. 1356 of 2002 is filed against C.C. No 7608 of 1998 on the file of the learned II Metropolitan Magistrate, Egmore.

4. Cri. O.P. No.1356 of 2002 is filed against C.C. No 7610 of 1998 on the file of the learned II Metropolitan Magistrate, Egmore.

5. The petitioner is the accused in all the aforesaid case launched against him for the offences under Section 138 of the Negotiable Instruments Act. The payee G. Raghaven in Cri. O.P. No.1354 of 2002, the payee G.Venkatesan in

Cri. O.P. No. 1355 of 2002, the payee G. Vijayakumar in Cri. O.P. No.1356 of 2002 and the payee Tmt. G. Ramani in Cri. O.P. No. 1357 of 2002 have filed a complaint through their power of attorney, K. Gopalakrishnan.

6. The payee G. Raghaven in Cri. O.P. No.1354 of 2002, the payee G. Venkatesan in Cri. O.P. No. 1355 of 2002. the payee G.Vijayakumar in Cri. O.P. No.1356 of 2002 and the payee Tmt.G. Ramani in Cri. O.P. No. 1357 of 2002 had not signed the complaint nor had they filed any affidavit in proof of execution of their power of attorney. Further the sworn statement of the power of attorney agent was not recorded on the date of presentation of the complaint.

7. There was no representation for the respondents.

8. Before proceeding to decide these cases on merit it is useful to refer to the various decisions of this Court cited. Of course in the authority in Y. Vijaya-lakshmi @ Rambha v. Manickam Nara-yanan, Proprietor, Seventh Channel Communications, represented by its Power of Attorney; Agent, Thanigaivelan1 a learned Judge of this Court (S.R. Singharavelu, J.) after going through the various judgments of the High Courts and the Hon’ble Supreme Court has come to a conclusion that (a) the complaint under Section 138 of the Negotiable Instruments Act, shall be signed by the complainant himself; (b) an affidavit of complainant in proof of execution of power of attorney shall be filed; (c) sworn statement of the power of attorney agent can be recorded on the date of presentation of the complaint; (d) sworn statement of payee i.e., the complainant shall have to be taken on future date on his appearance in Court; and (e) the Magistrate shall thoroughly examine the statement of the agent as well as the principal and the documents produced before exercising discretion under Sections 202 and 203 of the Code of Criminal Procedure.

9. Another learned Judge of this Court (T.S.Arunachalam, J. as he then was) in Ruby Leather Exports, etc. v. K. Venu, etc.2 has taken a view that the power of attorney agent is virtually the payee himself or the holder in due course. Therefore, filing of a complaint for offences under Section 138 of the Negotiable Instruments Act by the power of attorney agent is valid in the eye of law.

10. Another learned Judge of this Court (M. Karpagavinayagam, J.) in the authorities in B.Mahendra Jain v. C.K. Mohammed Ali3 and Y. Sreelatha @ Roja v. Mukanchand Bothra4, has held that the power of attorney holder of the payee is competent to make the complaint in writing. The phrase “in writing” cannot be taken to mean to be in writing by the payee himself. Further the cognizance taken on the basis of the sworn statement of the power of attorney holder is valid. Section 142(a) of the Negotiable Instruments Act does not exclude or prohibit the complaint being initiated by the power of attorney agent on behalf of the payee or holder in due course of cheque.

11. Recently, a Full Bench of the Andhra Pradesh High Court in Rama-chandra Rao, K. v. State of A.P.5 has held that when Section 142 of the Negotiable Instruments Act, 1881, does not specifically state that the payee or holder in due course of dishonoured cheque should personally file the complaint, the power