IMPORTANT POINT
Complaint for offence under Section 138 of NI Act filed in the name and on behalf of payee by attorney holder of payee is a valid complaint.

H.R. Panwar, J.—By the instant criminal miscellaneous petition under Section 482 CrPC the order dated 10.2.2005 passed by the Additional Sessions Judge (Fast Track) No.1, Bhilwara (for short “the revisional court”) has been challenged by the petitioner whereby the revision petition filed by the respondent No. 2 was allowed and the order taking cognizance of offence dated 29.4.2004 passed by the Additional Chief Judicial Magistrate, Bhilwara (for short “the trial court”) on a complaint filed by the petitioner Chandrika (Smt.) through her Power of Attorney Holder Sagar Mal for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short “ the Act of 1881”), was set aside.

2. The facts and circumstances giving rise to the instant criminal misc. petition are that a complaint was filed by petitioner Chandrika (Smt) through her Power of Attorney Holder Sagar Mal who is her husband, for the offence under Section 138 of the Act of 1881 against the respondent No. 2 M/s Handloom House through its proprietor Shri Vijay Kumar Dua before the trial court. The trial court took the cognizance of the offence under Section 138 of the Act of 1881 against the respondent No.2 on 29.4.2004 and issued the process. Thereafter, an application was filed by the respondent No.2 for recalling of the order taking cognizance and the same was dismissed by the trial court and thereafter, the order taking cognizance came to be challenged by the respondent No. 2 by way of a criminal revision before the revisional court being Criminal Revision Petition No. 77/2004. the revisional court set aside the order of the taking cognizance solely on the ground that Section 142 of the Act of 1881 provides that 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. According to revisional court, the complaint was though filed in the name of payee but it was filed through Power of Attorney and payee herself did not appear and filed the complaint and as such, the complaint is not maintainable. Aggrieved by the order of revisional court, the petitioner has filed the instant misc. petition.

I have heard learned counsel for the parties.

3. It is contended by learned counsel for the petitioner that the requirement as envisaged under Section 142 of the Act of 1881 to file the complaint is that a complaint should be filed in the name of payee or the holder in due course of the cheque and not that the payee or the holder in due course of cheque should personally appear before the court and file the complaint. Learned counsel for the petitioner has relied on the decisions of Hon’ble Supreme Court in M/s MTTC Ltd. and Anr. v. M/s Medical Chemicals and Pharma (P) Ltd. and Anr.1 in M/s Shankar Finance and Investments v. State of A.P. and Ors.2, a decision of Kerala High Court in Hamsa v. Ibrahim3, in K. Gopalakrishnan v. Karunakaran4 represented by the Power of Attorney Holder, in Aashirwad Enterprises v. Sambhar Salts Ltd.5 in Ajay Kumar Jain v. State of Rajasthan6 in Mohil Fibers v. Shri Saai Agro Industries and Anr7 and in Muthukaruppan v. Raghavan.8

4. Learned counsel appearing for the accused-respondent has relied on a decision of Single Bench of this Court in Smt. Lalita Hundiya v. Govind Narayan Khuteta and Anr.9

5. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties and carefully gone through the material on record.

6. Section 142 of the Act of 1881 deals with the cognizance of offences under the Act of 1881, which 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