IMPORTANT POINT
A power of attorney of a payee or holder in due course can make a complaint under Section 142 of Negotiable Instruments Act.

K.A. Mohamed Shaft, J. – These, M.Cs. are filed by the accused in C.C. Nos. 464/98 and 376/99 pending before the Judicial First Class Magistrate's Court -V, Thiruvananthapuram, and Addl. Chief Judge. Magistrate's Court, Thiruvananthapuram, respectively, to quash the entire proceedings under Section 482 of the Cr. P.C.

2. On the basis of Annexure - B complaints filed by the complainant, who is the 2nd respondent in Crl. M.C. 2719/ 99 and 1st respondent in Crl. M.C. 3383/ 99, the petitioner is standing trial for the offence punishable under Section 138 of Negotiable Instruments Act before the J.F.C.M.'s Court-V, Thiruvananthapuram and C.J.M.'s Court, Thiruvananthapuram respectively. Annexure A is the copy of the notice sent by the complainant intimating the petitioner about the dishonour of the cheques and calling upon him to pay the amount.

3. The petitioner has contended that Annexure - A notice sent on behalf of the drawee of the cheque is not in conformity with proviso (b) to Section 138 of the N.I. Act, that Annexure - B complaint does not disclose, the ingredients of the offence punishable under Section 138 of the N.I. Act and that the notice is issued not as per the instructions given by the payee or the holder in due course as stipulated in proviso (b) to Section 138 of the N.I. Act, and is issued as per the instructions given by the power of attorney holder of payer of the cheque and, therefore, the notice is invalid in law.

4. Proviso (b) to Section 138 of the N.I. Act stipulates that the payee or the holder in due course of the cheque, as the case may be should make a demand for the payment of the cheque amount by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. In this case there is no contention that Annexure - A notice is not sent within 15 days of the receipt of information from the bank regarding the dishonour of the cheque. No particular form of notice is prescribed under proviso (b) to Section 138 of the N.I. Act, It only stipulates that a notice in writing should be given to the drawer of the cheque within 15 days of the receipt of information from the bank regarding return of the cheque unpaid, demanding the payment. It is the statutory duty of the drawer to pay the amount within 15 days of the receipt of notice under proviso (c) to Section 138 of the N.I. Act, In Annexure - A notice the drawer of the cheque, the petitioner herein is called upon to pay the cheque amount within 15 days from the date of receipt of the notice. Therefore, Annexure - A notice is perfectly in compliance with proviso (b) to Section 138 of the N.I. Act. Therefore, this contention raised by the petitioner is absolutely unsustainable.

5. The next contention raised by the petitioner is that Annexure-A notice is issued not by the payee or the holder in due course as stipulated in proviso (b) to Section 138 of the N.I. Act and it is issued by the Advocate on instructions given by the power of attorney holder of the payee of the cheque. Therefore, according to the petitioner, Annexure-A notice is illegal and invalid since under proviso (b) to Section 138 of the N.I. Act it is incumbent upon the drawee or the holder in due course, as the case may be, to issue notice, and the power of attorney holder of the payee is incompetent to issue notice under proviso (b) to Section 138 of the N.I. Act.

6. In support of this contention the Counsel for the petitioner relied upon the decision in T.C. Mathai v. District and Sessions Judge1, wherein it has been held that under the Code of Criminal Procedure the appearance of the accused cannot be made through a power of attorney holder and an agent cannot become a pleader for the party in criminal proceedings unless the party secures permission from the Court to appoint him to act in such proceedings.

7. The above decision has absolutely no application to the facts of this case. In this ca