IMPORTANT POINT
Power-of-attorney holder of a payee or holder in due course can make a complaint u/s. 142 of Negotiable Instruments Act.

K.T. Thomas, J. - In the rapid proliferation of "cheque cases" in criminal courts with the introduction of section 138 and its allied provisions in Negotiable Instruments Act, 1881 (for short 'the N.I. Act') any answer to the question raised in this Criminal Miscellaneous Case may have some impact. The question raised is this: Can the payee or holder in due course of a cheque file a complaint in the court as per Section 142 of the N.I. Act through his power-of-attorney holder?

2. Shri P. Vijaya Bhanu and Shri S. Vijayakumar, Advocates, argued on opposite positions. A brief statement of facts in this case may be made. A complaint has been filed in the court of a judicial magistrate of first class for the offences under section 138 of the N.I. Act against the petitioner herein as the accused. One Mohammed Syed @ Veeran Haji is the complainant in the case, but respondent herein (one Ibrahim Hajee) has signed the complaint as power-of-attorney holder of the complainant. Learned magistrate took cognizance of the offence and issued process to the petitioner. Now the petitioner has come before this Court invoking the inherent powers of the High Court envisaged in section 482 of the Code of Criminal procedure (for short 'the Code') to have the complaint quashed.

3. Though the petitioner has raised more than one ground in his petition for quashing the complaint, learned counsel for the petitioner has, during arguments, confined to one point that "the respondent is only the power-of-attorney holder of the payee who has no locus standi to file the complaint under section 138 of the N.I. Act". Counsel contended that the complaint is liable to be dismissed as the magistrate has no jurisdiction to take cognizance of the offence on such a complaint.

4. Under section 142 of the N.I. Act "no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or as the case may be, the holder in due course of the cheque", notwithstanding anything contained in the Code. The contention is that since the provision debars a court from taking cognizance of the offence except on a complaint filed either by the payee or by the holder in due course, no complaint can be filed by any other person, be he the agent or holder of a power-of-attorney of such person.

5. Shri P. Vijaya Bhanu contended that if Parliament had intended to permit the agent of a payee or holder in due course to file the complaint, necessary words would have been employed in the statute for the purpose. Absence of such words in the statute is sufficient indication that legislature did not intent so, contended the counsel. He cited sections 198 and 199 of the Code in support of the contention. As per those provisions, a court is debarred from taking cognizance of certain offences except upon a complaint made by some person aggrieved by the offence concerned. However, special provision is made in both sections enabling another person to file the complaint on behalf of such aggrieved person under certain circumstances and on certain conditions.

6. Merely because section 142 of the N.I. Act does not contain similar provisions as in sections 198 and 199 of the Code, no inference can be drawn that Parliament never intended to allow the complaint to be filed through an agent or power of-attorney holder of a payee or holder in due course.

7. In considering the question involved here legal position regarding the right 'of a person to appoint another as his agent has to be understood atleast in a general manner. According to the Law of England "every person who is suijuris has a right to appoint an agent for any purpose whatever, and that he can do so when he is exercising a statutory right no less than when he is exercising any other right" (vide Jackson & Co. v. Napper1).

This was recognised as a common law right. Blackburn, J. has stated in Queen v. Justices of Kent2 that "at common law, when a person authorizes another to sign fo