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PUNJAB & HARYANA HIGH COURT
KK Srivastava, J.
Meeta Rai (Smt.) - Petitioner
versus
Gulshan Mahajan - Respondent
Criminal Misc. No. 14460 of 1994 and
Criminal Misc. No. 6364 of 1995 (O & M)
Decided on 10-3-1999
Counsel for the parties:
For the Petitioner: Mr. V. Shekhar, Advocate.
For the Respondent: Mr. H.S. Hooda, Sr. Advocate with Mr. Mahavir Sandhu, Advocate.
IMPORTANT POINT
Complaint under Section 138 of Negotiable Instruments Act filed by a person who has not been legally and validly authorised by means of General Power of Attorney or Special Power of Attorney cannot be held properly instituted complaint.
Headnote:Negotiable Instruments Act, 1881 - Sections 138 and 142 – Dishonour of cheque - Complaint to be filed by "payee or holder in due course" Cheque issued in name of wife of complainant - Complaint filed by husband on basis of letter of authority issued by payee - Letter of authorisation could not in law be equated to document known as General Power of Attorney or a Special Power of Attomey - Authority letter no where undertook that executants would be bound by acts done and conducted on her behalf by her husband - Complaint filed in such circumstances could not be held to be a properly instituted complaint in law and was liable to be quashed. (paras 4, 6 & 7)
Result: Petition allowed.
K.K. Srivastava, J. - By means of this petition filed under Section 482, Cr. P.C. the petitioner seeks the quashing of the impugned complaint filed under Section 138 of the Negotiable Instruments Act and the order of summoning passed by the Judicial Magistrate 1st Class, Amritsar. The copy of the complaint has been placed on record as Annexure P-5 and the order of summoning has been placed on record as Annexure P-6. One of the grounds urged on behalf of the petitioner is that the impugned complaint has not been filed by the payee or the holder in due course of the cheque, which is alleged to have bounced and it was issued by the respondent. A perusal of the copy of the impugned complaint filed in the Court of Chief Judicial Magistrate, Amritsar (copy Annexure P-5) will show that the, complaint was filed by one Gulshan Mahajan son of Amar Nath Mahajan c/o Pioneer Press, Katra Sher Singh, Amritsar, in para 1 of the impugned complaint. It was averred as under:-
"That the complainant is the husband of Sucheta Mahajan daughter of Shri Gian Chand Gupta and she has given authority letter for institution of the complaint against the accused for the dishonour of cheque. Even otherwise the complainant is fully conversant with the facts of the case on instant complaint."
2. Annexure P-7 is the copy of the authority letter, which is said to have been issued by Smt., Sucheta Mahajan wife of the complainant Shri Gulshan Mahajan and it reads as under:-
Authority Letter,
"I. Sucheta Mahajan wife of Sh. Gulshan Mahajan daughter of Sh. Gian Chand Gupta C/o Pioneer Press, Katra Sher Singh, Amritsar do hereby appoint and authorise my husband Shri Gulshan Mahajan son of Sh. Amar Nath Mahajan to institute complaint under Section 138 of Negotiable Instruments Act against Mrs. Meeta Rai. Headmistress, Delhi Public School, Basant Vihar, New Delhi. Director RMS System and Chemical Specialty Pvt. Ltd. New Delhi regarding dishonoured Cheque amounting to Rs. 2,75,000/- bearing Cheque Number 774346 dated 30-12-1993 drawn on Dena Bank, Nehru Place, New Delhi.".
3. He is further authorised to give evidence in the case as he is conversant with all the facts of the payment of cheque. All acts done by him in respect of filing of complaint in Criminal Court and engaging Counsel summoning the witness, filing of Misc. applications pertaining to this case give reply if any as and when required in connection with this dishonoured cheque.
Dated: April 1994
Sd/
Executant
(Sucheta Mahajan)
3. It is not disputed that the cheque in question was issued in favour of Mrs. Sucheta Mahajan on 30-12-1993 for a sum of Rs. 2,75,000/- only and it was signed for RMS System and Chemical Speciality Pvt. Ltd. and signed by Shri. Sanjay Mahajan and M. Rat, it was drawn on Dena Bank, Nehru Place, New Delhi and was an Account Payee cheque vide Copy Annexure P-8/A with its photostat copy. Also Section 142 of the Negotiable Instruments Act inter-alia provides notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974)
(a) 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
(b) xx xx xx
(c) xx xx - xx
4. It is also not disputed that the, impugned complaint has not been filed by Smt. Sucheta Mahajan who is the payee and holder in due course of the cheque in question. This brings to the consideration and the authorisation, which is said to have been made by Smt. Sucheta Mahajan in favour of her husband, the complainant Gulshan Mahajan. The authority letter (copy Annexure P-7) has already been extracted and it will appear from this authorisation that it is a simple letter written by Sucheta Mahajan in April, 1994 conferring certain acts on her husband to be done by him and for on her behalf. This letter of authorisation cannot in law be equated to a document known as General Power of Attorney or for that matter a
