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2006(2) Bankmann 305
MADRAS HIGH COURT
P. Sathasivam & S. Manikumar, JJ.
K. Gopala Krishnan — Petitioner
versus
Karunakarann rep. by Power
of Attorney holder,
Dhandapani — Respondent
Crl. O.P. No. 350 of 2006
Decided on 22-8-2006
Important Points
(i) Complaint even if not signed by the Power of Attorney on behalf of the complainant but signed in his own name, is maintainable and not bad in law because it is more procedural than substantive;
(ii) Though the General Power of Attorney at initial stage fails to produce the deed of Power of Attorney or the affidavit of the complainant in proof of execution of Power of Attorney, the same can be rectified by producing the same at a subsequent stage of the proceedings as and when the validity of the Power of Attorney is questioned by the accused and the Court could then be called upon to decide the genuineness or the validity of the Power of Attorney.
(iii)It is not required to record the sworn affidavit of the complainant also on a future date to enable the Court to exercise its discretion.
Subject
Criminal Law - Negotiable Instruments Act
Act Referred
NEGOTIABLE INSTRUMENTS ACT : S.138
POWERS OF ATTORNEY ACT : S.2
Headnote
Held: Section 2 of Powers of Attorney Act, 1882 makes it clear that Power of Attorney can execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required by the authority of the donor of the power, and every instrument and thing so executed and done, shall be effectual in law as if it had been executed or done by the donee of the power. The scope of the above section has been explained in the above referred decision Ravulu Subba Rao and others v. Commissioner of Income Tax, Madras, AIR 1956 SC 604. From the careful reading of the above provision of the Act as well as the observation of the Hon’ble Supreme Court, it can safely be concluded that a complaint signed by the Power of Attorney in his name, though not on behalf of the complainant, is maintainable and valid in law. Therefore, the Power of Attorney has the authority to act on behalf of the principal and the acts done by him in exercise of that authority are protected even if done in his own name. In the light of the above principle, the complaint even if not signed by the Power of Attorney on behalf of the complainant but signed in his own name is maintainable and not bad in law, because it is more procedural than substantive. (Para 10)
(ii) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Prosecution—Complaint filed by Power of Attorney holder of payee—Even though General Power of Attorney at initial stage failed to produce the deed of Attorney or affidavit of complainant in proof of execution of Power of Attorney, same can be rectified by producing same at a later stage—It is not required to record the sworn statement of complainant at a future date to enable the Court to exercise its discretion.
Held: It is therefore clear that even though the General Power of Attorney at initial stage failed to produce the deed of Power of Attorney or the affidavit of the complainant in proof of execution of Power of Attorney, the same can be rectified by producing the same at a later stage of the proceedings as and when the validity of the Power of Attorney is questioned by the accused and the Court could then be called upon to decide the genuineness or the validity of the Power of Attorney. (Para 13)
We are of the view that the actual complainant is also to be examined on oath on his appearance on a future date before the Magistrate is unwarranted and unnecessary. If the examination of the complainant on oath at a future date to enable the Magistrate to exercise his discretion under Section 202 or 203 of the Code is necessary, then, as rightly pointed out by the learned Senior Counsel, there will be no need or necessity for the Power of Attorney to file the complaint on behalf of the principal. By requiring the complainant also to be examined upon oath on a future date would only be an additional burden to the Magistrates and therefore, is not warranted. That upon, examination of the Power of Attorney under Section 200, Cr.P.C., the Magistrate first proceeds with the issue of summons under Section 204, Cr. P. C. and thereafter calls upon the original complainant to be examined upon oath would amount to going back to the square one and therefore is impermissible. Such examination of the complainant on a future date to enable the Court to exercise its discretion would run counter to the scheme of the Code which has not provided for review and prohibits interference at interlocutory stages. (Para 14)
Result: Order accordingly.
Counsel for the Parties:
For the Petitioner:Mr. V. Bhiman, Advocate.
For the Respondent: Mr. S. Ashok Kumar, Senior Counsel as amicus curiae for Mr. C.D. John assisted by Mr. M. Babu Muthu Meeran, Additional Public Prosecutor.
P. Sathasivam, J. —The petitioner K. Gopalakrishnan, an accused in a case filed under Section 138 of the Negotiable Instruments Act for alleged dishonouring of the cheque issued to the respondent herein on 5.7.2004, seeks to quash the said case in C.C. No. 93 of 2005 on the file of Judicial Magistrate No. II, Chidambaram.
2. According to the petitioner, there is no legally enforceable debt for the issuance of the cheque in dispute. The other main contention of the petitioner is that the complaint was preferred by the respondent herein, in violation of the guidelines issued by this Court in Y. Vijayalakshmi @ Rambha v. Manickam Narayanan, Proprietor, Seventh Channel Communications rep. by its Power of Attorney Agent, Thanigaivelan1 wherein the learned single Judge (S.R. Singharavelu, J.) has held that the complaint shall be signed by the payee himself and not by the Power of Attorney holder and that the sworn statement of the complainant also shall be recorded by the Judicial Magistrate while taking cognizance of the offence under Section 138 of the Negotiable Instruments Act. Relying on the said decision, the learned Counsel for the petitioner contended that the complaint was filed and signed by the Power of Attorney and above all, the Power of Attorney entered the box and gave the sworn statement and hence, in the absence of original complaint, the proceedings in C.C. No. 93 of 2005 are liable to be quashed.
3. When the above petition came up for hearing, M. Jeyapaul, J., on going through Section 142 of the Negotiable Instruments Act, Full Bench decision of the Andhra Pradesh High Court in the case of Ramachandra Rao K. v. State of A.P.2 as well as the decisions of this Court in Ruby Leather Exports, etc. v. K.Venu, etc.3 and B. Mahendra Jain v. C.K. Mohammed Ali4 unable to accept the view expressed by S.R. Singharavelu, J. in Y. Vijayalakshmi @ Rambha v. Manickam Narayanan, Proprietor, Seventh Channel Communications, rep. by its Power of Attorney Agent, Thanigaivelan (supra) and referred the matter to be decided by a Larger Bench. Accordingly, on Orders of the Hon’ble Chief Justice, the above petition has been posted before us.
3. Heard Mr.V. Bhiman, learned Counsel for the petitioner, Mr. S. Ashok Kumar, learned Senior Counsel as amicus curiae to assist the Court and Mr. M. Babu Muthu Meeran, Additional Public Prosecutor.
4. The points raised in the Order of reference dated 25.1.2006 made by M. Jeyapaul, J. are as follows:
(1)Whether the complaint shall be signed by the Power of Attorney holder on behalf of the complainant ?
(2) Whether the production of affidavit of the complainant in proof of execution of the Power of Attorney in his favour is necessary ?
(3) Whether the sworn statement of the complainant is also required to be recorded on a future date on his appearance in the Court to enable the Court to exercise its discretion under Sections 202 and 203 of the Code of Criminal Procedure?”
5. Before considering the issues mentioned above, it is useful to refer the decision of S.R. Singharavelu, J. in Y. Vijayalakshmi @ Rambha v. Manickam Narayanan, Proprietor, Seventh Channel Communications rep., by its Power of Attorney Agent, Thanigaivelan (supra). The question that was raised before the learned Judge is as to whether a complaint under Section 138 of Negotiable Instruments Act, 1881, can be filed by a Power of Attorney ? The learned Judge, after referring Section 142 of the Negotiable Instruments Act, and various decisions relating to Powers of Attorney Act, 1882, in connection with said provision, has concluded that complaint can be presented by General Power of Attorney on behalf of the payee, provided:
“(i) the complaint shall be signed by the payee himself;
(ii) there shall be also an affidavit of the complainant in proof of his execution of General Power of Attorney; added to the production of the said Power of Attorney document;
(iii) sworn statement of General Power of Attorney can be recorded on the da
