JUDGMENT - R.K. BATTA, J:---The petitioner was held guilty under section 138 of the Negotiable Instruments Act (hereinafter called as "the said Act") and was sentenced to pay a fine of Rs. 18,000/-, in default simple imprisonment of one month by the Judicial Magistrate, First Class, Margao. The petitioner filed an appeal before the Sessions Judge, Margao against the said order and the learned Sessions Judge, by judgment dated 12-3-99 maintained the conviction of the petitioner, but reduced the fine to Rs. 13,500/- and in default to undergo simple imprisonment of one month. He further ordered that a sum of Rs. 9,000/-, out of the said fine shall be paid as compensation to the complainant/respondent No. 1. The petitioner challenges the said order of conviction and sentence in this revision.

2. The only point which was argued before the Sessions Judge was that whether a complaint could be filed by Power of Attorney in view of section 142 of the said Act and whether the Power of Attorney could give evidence on behalf of the complainant? The same point has been urged before me by learned Advocate for the petitioner.

3. Learned Advocate for the petitioner states that though there are rulings of various High Courts on the question that a complaint could be filed in view of section 142 of the said Act through Power of Attorney, yet there is no pronouncement of the High Court in the question as to whether Power of Attorney could also depose on behalf of the complainant. The learned Advocate for the petitioner placed before me rulings in (A.K. Roy and another v. State of Punjab and others)1, A.I.R. 1986 S.C. 2160, (Hamsa v. Ibrahim)2, 1994(I) Crimes 395, and (Suresh Srinivasan Iyengar v. State of Maharashtra others)3, 1998 Bank.J. 755. According to her, Power of Attorney cannot depose on behalf of the complainant even though it may be possible to file a complaint through Power of Attorney.

4. Learned Advocate Shri N. Afonso, argued on behalf of respondent No. 1 that not only complaint could be filed through Power of Attorney, but the Power of Attorney, can depose on behalf of the complainant during the course of trial.

5. Learned Public Prosecutor on behalf of the State/respondent No. 2 submitted that it is now well settled that a complaint for offences under Chapter XVII of the said Act, could be filed through Power of Attorney in view of section 142 of the said Act and the Power of Attorney is entitled to prosecute the complaint so filed. He urged that the Power of Attorney can certainly be examined as witness for the complainant and that there is no merit in the petition.

6. Section 142 of the said Act which deals with cognizance of offences, reads as under :

"142. Cognizance of offences.---Notwithstanding anything contained in the Code of Criminal Procedure, 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) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to section 138;

(c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under section 138."

I shall first refer to the pronouncements of various High Courts on the question posed and which is required to be decided in this revision.

7. In Hamsa v. Ibrahim (supra), it has been held that a Power of Attorney of a payee or holder in due course can file complaint under section 142 of the said Act. In this case, a complaint was filed for an offence under section 138 of the said Act, of which the Magistrate had taken cognizance and issued process. The petitioner therein invoked inherent powers of the High Court under section 482 of the Code of Criminal Procedure for quashing of the complaint. The argument put forward on behalf of the petitioner therein was that the power of attorne

Click Here to Read the rest of this document