IMPORTANT POINT
Power of attorney of a payee or a holder in due course of a dishonoured cheque can file a complaint for offence u/s 138 of Negotiable Instrument Act after obtaining permission from Court either before or after filing of complaint.

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 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 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 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 (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. Commr. of Income Tax2, which approved the observation in Jackson & Co. v. Napper: In re Schmidts’ Trade -Mark3, that every person who is suit Juris has aright 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. Chettranjan Co.7, where the Kerala, Madras and Guja1at 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. District 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 th