Back
2005(1) Bankmann 296
ANDHRA PRADESH HIGH COURT
G. Bikshapathy, C.Y. Somayajulu and Ch. S.R.K. Prasad, JJ.
K. Ramachandra Rao
and others — Petitioners
versus
State of A.P.
and another — Respondents
Criminal Petition Nos. 2332, 2243 and 2244 of 2002 and Crl. P.No. 5361 of 2003
Decided on 27.12.2004.
For the Petitioners:Y.V. Ravi Prasad, Kuriti Bhaskar Rao and K. Ramesh Chowdary, Advocates.
For the Respondent No. 1: Public Prosecutor
Amicus Curiae:Mr. T. Balireddy, Senior Advocate.
IMPORTANT POINTS
Power of Attorney of a payee or a holder in due course of a dishonoured cheque can file a complaint under Section 138 of the Negotiable Instruments Act.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 142—Powers of Attorney Act, 1882—Section 2—Contract Act, 1872—Section 183—Dishonour of cheque—Complaint presented by General Power of Attorney of payee of the cheque—Whether Power of Attorney of payee or a holder in due course of dishonored cheque can institute complaint? (Yes) —Right accrued to the payee or the holder in due course of dishonoured cheque does not fall within the three exceptions to the rule qui facit per alium facit per se.
Held From the definitions of ‘payee’ and ‘Holder in due course’ it is clear that the right to encash the cheque is not ‘personal’ in character vis-à-vis the drawer of the cheque. This assumes importance because, if the act to be performed is not ‘personal in character’, the person who has to perform the act can do it by delegation i.e. can get if done by his agent, in view of Section 183 of the Contract Act read with Section 2 of Powers of Attorney Act, 1882. Here it should be stated that even in cases relating to offences under Sections 497 and 498 IPC, which can be termed as offences ‘personal in character’ with reference to the husband of the adulteress, Section 198 Cr.P.C., which mandates that a husband only shall be deemed to be aggrieved by the offences under that section and permits him only to make the complaint, makes an exception and lays down that in the absence of the husband, the person who had the care of the woman on his behalf, at the time when the offence was committed can, with the leave of the Court, make the complaint. Therefore, it is clear that a complaint in a criminal case need not necessarily be filed by a ‘person aggrieved by the offence’, unless the statute says so.
(Para 11)
In Ram Chandra case (supra) it is clearly held that complaint filed through the power of attorney of a person aggrieved, tantamount to filing of the complaint by the person aggrieved. For that reason, and since the right accrued to the payee or the holder in due course of a dishonoured cheque does not fall within the three exceptions to the rule qui facit per alium facit per se recognized by Section 183 of the Contract Act i.e. since the act to be performed (i) is not personal in its character, or (ii) is not annexed to any public office, and (iii) does not involve any fiduciary obligations, we hold that the power of attorney of a payee or a holder in due course of a dishonoured cheque can file a complaint for an offence under Section 138 of the Act after obtaining permission from the Court, either before or after filing of the complaint. The reference is answered accordingly.
(Para 16)
Result: Reference answered accordingly.
G. Bikshapathy, J.—The accused in C.C. No. 2188 of 1999 on the file of the court of the XI Metropolitan Magistrate, Secunderabad, filed Criminal Petition No. 2332 of 2002 to quash the proceedings against him under Section 138 of Negotiable Instruments Act, 1881 (the Act) on the ground that the complaint against him, presented by the General Power of Attorney of the payee of the cheque issued by him, which was dishonoured, is not maintainable in view of the S.P. Sampathy v. Smt. Manju Gupta1. When the said petition came up for hearing before one of us (C.Y. Somayajulu, J), since Powers of Attorney Act, 1882, and Section 183 of Contract Act, 1872, recognizing the principle of qui facit per alium facit per se were not considered while rendering the said decision, the matter was referred to a Division Bench for reconsideration of the ratio in that decision in view of those provisions, and directed the Registry to post the case before an appropriate bench after obtaining Orders from the Hon’ble the Chief Justice. The Hon’ble the Chief Justice referred the case to a full bench for its decision. That is how this case came before us.
2. The question to be answered by this Full Bench is whether power of attorney of a payee or a holder in due course of a dishonoured cheque can institute a complaint under Section 138 of the Act, on behalf of the payee or the holder in due course of the dishonoured cheque.
3. At our request Sri. T. Balireddy, Senior Advocate readily accepted to act as Amicus Curiae. We place on record our appreciation for the valuable assistance rendered by him.
4. Since Section 142 of the Act lays down that notwithstanding anything contained in Cr.P.C. the Court cannot take cognizance of an offence punishable under Section 138 of the Act except upon a complaint in writing made by the payee or the holder in due course of the dishonoured cheque keeping in view Section 5 Cr.P.C., the Division Bench in S.P. Sampathy case (1 supra) held that complaint filed by a power of attorney of a payee or a holder in due course is not maintainable, without taking into consideration Section 2 of the Powers of Attorney Act, 1882, and Section 183 of the Contract Act.
5. The contention of Sri T. Balireddy, learned senior counsel is that in view of Section 2 of the Powers of Attorney Act, 1882, read with the ratio in Ravula Subbarao v. Commissioner of Income Tax2 which approved the observation in Jackson and Co. Napper: In re Schmidts’ Trade Mark3 that every person who is sui juris has a right to appoint an agent for any purpose, except in cases where the act to be performed is personal in character, or is annexed to a public office, or an act involving fiduciary obligation, and since the Act does not lay down that the payee or the holder in due course should personally file the complaint, complaint filed by the payee or the holder in due course of a dishonoured cheque through his Power of Attorney is maintainable, more so because in Ram Chandra v. State of Bihar4 the apex Court held that prosecution launched at the instance of the power of attorney of a person aggrieved tantamounts to institution of the complaint by the person aggrieved himself. He relied on Hamsa v. Ibrahim5, M/s. Ruby Leather Exports v. K. Venu rep. Vandana Chemicals etc.6 and Anil G. Shah v. I.J. Chittranjan Co.7 where the Kerala, Madras and Gujarat High Courts took the view that a complaint filed by the power of attorney of a payee or holder in due course of a dishonoured cheque under Section 138 of the Act, is maintainable. He further contended that since in T.C. Mathai v. Distt and Sessions Judge, Thiruvananthapuram, Kerala8 it is held that an accused, after obtaining permission from Court, can appear through a power of attorney, there can be no impediment for the payee or the holder in due course of a dishonoured cheque filing the complaint under Section 138 of the Act through his power of attorney.
6. The learned Public Prosecutor supported the view that the paye
