IMPORTANT POINT
Complaint u/s 138 of Negotiable Instruments Act, can be filed through person holding a power of attorney.

Krishna Saran Shrivastav, J - This revision is directed against the order passed by the I Class Magistrate, Gudivada, whereby the objection of the petitioner that the complaint be dismissed being not maintainable has been rejected.

2. Under Section 138 of the Negotiable Instruments Act, the complaint has been filed by Smt. M. Damayantamma through her authorised agent Sri Malireddy Satyanarayana Reddy who is holding the registered general power of attorney executed by the complainant in his favour authorising him to recover all her debts. It is alleged in the complaint that the complainant is an aged woman of about 60 years and is keeping indifferent health. Malireddy Satyanarayana Reddy is the nephew of the complainant-1st respondent.

3. The petitioner-accused before starting cross-examining P.W. 1 filed an objection alleging that the complaint is not maintainable because it has been signed and filed by the person holding the general power of attorney of the complainant. This objection has been rejected.

Feeling aggrieved by the impugned order, this revision has been preferred.

4. In the case of Manimekalai v. Chapaldas Kalyanji Sanghvi1, it is held that complaint can be filed for an offence under Section 138 of the Negotiable Instruments Act through the person holding a power of attorney. Under Section 198 of the Code of Criminal Procedure, it is provided that no Court shall take cognizance of any offence punishable under Chapter XX of the Indian penal Code except upon a complaint made by some person aggrieved by the offence and it is mentioned in the proviso that under certain circumstances the complaint can be lodged by persons named in it. Similarly persons have been named who can institute the complaint under Section 198-A of the Code of Criminal Procedure for an offence under Sec. 498-A of the Indian Penal Code and under Section 199 of the Code of Criminal Procedure for an offence under Section 500 of the Indian Penal Code. There is no provision in the Code of Criminal Procedure, which forbids filing of the complaint for committing other offences either under the Indian Penal Code or under any other law except Sections 198,198-A and 199 of the Code of Criminal Procedure as provided under these sections.

5. The case of Abhyoyeswari v. Kishori Mohan- Banerjee2, is distinguishable on facts because a general power of attorney was given to the complainant therein for presentation of criminal complaints. Thus, it appears that for committing any offence a blanket power of attorney had been given and under these circumstances the Division Bench of the Calcutta High Court has held that in the absence of a specific power of attorney the complaint for defamation cannot be filed. As noted above complaint under Section 500 of the Indian Penal Code can be filed by persons as mentioned under Section .199 of the Code of Criminal Procedure. Similarly the case of Koya Moideen v. Hariharan3, is also distinguishable on facts. The reason is that, on the strength of a will alleged to have been executed by the father of the complainant a complaint was filed under Section 138 of the Negotiable Instruments Act, but the will was not filed and it was alleged that the Will was not genuine. Under these circumstances the learned Single Judge of the Kerala High Court has held that without an adjudication regarding the validity of the Will the petitioner-accused could not be prosecuted. The learned Single, Judge of the Kerala High Court has not observed that a person holding a power of attorney is incompetent to institute a complaint under Section 138 of the Negotiable Instruments Act.

6. For the foregoing reasons the order of the lower Court cannot be faulted with.

Revision dismissed.

1. 1995 Crl. L.J. 1102.

2. A.I.R. 1914 cat. 479.

3. 1996 (4) Crimes 434.