A complaint under Section 138 of the Negotiable Instruments Act can only be filed by the payee or the holder in due course, and not by a power of attorney holder.

( 1 ) EIGHT cases have been referred to this Court by virtue of an order of reference made by learned Single Judge of this Court dated 22/11/2001. The short point involved is whether a Criminal Court can take cognizance of a complaint under Section 138 of Negotiable Instruments Act on a complaint having been filed by a power of attorney holder of the complainant. The learned Single Judge of this Court in Smt. Payyati Savitri Devi v. Malireddy Damayanthamma, I (1997) BC144=1997 (4) Crimes 325, relying on Madras High Court judgment in Manimekalai v. Chapaldas Kalyanji Sanghi, 1995 Crl. L. J. 1102, has taken the view that a complaint could be filed by a general power of attorney holder also. The Madras High Court formed the opinion on the basis of Section 195 of the Code of Criminal Procedure. There is not much of discussion in the judgment of the learned Single Judge of this Court (supra), therefore, the learned Single Judge before whom the present matters had come up, expressing his doubts about the views taken by the learned Single Judge of this Court in the judgment (supra,) referred the matter to the Division Bench. We have heard the learned Counsels for the parties and gone through the record. We have seen the complaint as well. The complaint in these cases was not filed by the power of attorney holder. The complaint had been purported to have been made by the complainant who is the payee but it was signed by the power of attorney holder. It was argued before us that, whether it is necessary under Negotiable Instruments Act for a payee to personally file the complaint or even a holder can file the complaint who could be a holder in terms of Section 8 read with Section 142 of the Negotiable Instruments Act. But, those questions do not arise in these matters because the complaint itself was shown to have been made by the payee, but it was not signed by the payee. Section 142 (a) of the Negotiable Instruments Act lays down that the Court will not take cognizance of an offence punishable under Section 138 except on a complaint in writing made by the payee or the bolder in due course of the cheque. Clearly the Code of Criminal Procedure is not applicable. Section 5 of the Criminal Procedure Code lays down :"5. Saving--Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any ether law for the time being in force. "from bare perusal of Section 5 of the Criminal Procedure Code it is clear that the Code lays down procedure for trial of all criminal cases except under any special or local law for the time being in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force. Therefore, for the purpose of taking cognizance, the provisions of Criminal Procedure Code have been excluded by Section 142 of N. I. Act. Therefore, any reference or reliance placed on Section 198 or Chapter XX of the Criminal Procedure Code is misplaced. The Trial Court gets jurisdiction to entertain a complaint only on satisfaction of two conditions, (1) that the complaint should be in writing : (2) it should be made by the payee or holder in due course of the cheque. Admittedly, in these cases the complaint had been made in the name of the complainant but it was not signed by the complainant but signed by his power of attorney holder. When the law demands that complaint should be in writing by the payee that means the complaint should be made and signed by the payee or the holder in due course. Admittedly, in the present cases that has not been done. Power of attorney holder has no entity in terms of Section 142 of N. I. Act. One can understand a complaint having been made under Section 142 by a holder in due course of the cheque but a power of attorney holder would not be a holder in d

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