IMPORTANT POINT
Complaint cannot be filed by power of attorney holder in his own name.

J.H. Bhatia, J.—Heard the learned counsel for the parties.

2. The complainant has preferred this Writ Petition challenging the order passed by the Additional Sessions judge, Greater Mumbai in the Criminal Revision Petition No.1275 of 2008, whereby he quashed the process issued by the Magistrate under Section 138 of the Negotiable Instruments Act against the accused, who is Respondent No.1 before this court.

3. To state in brief, the complaint was filed by one Vilas Baliram Sawant claiming to be constituted attorney for one Bhaskar Sakharam Bandiwadekar. Said Bhasker Sakharam Bandiwadekar is proprietor of RABTURN which is a Proprietorship concern. The accused had allegedly purchased certain goods from Rabturns for consideration of Rs.3,00,000 and it was agreed that he would make initial payment of Rs.1,50,000 and balance amount of Rs.1,50,000 would be paid on the delivery of machines. Accordingly, the accused made payment of Rs.1,50,000, machines were supplied and the accused issued a cheque dated 10.3.2008 for amount of Rs.1,50,000 in favour of Rabturns against his account maintained with Bank of India, Ghatkopar (East) Branch. The cheque was presented for encashment but it was returned on 10.5.2008 with endorsement “payment stopped by the drawer”. Inspite of notice no payment was made. Hence, the complaint:

4. As stated above, the complaint was not filed either by Bhasker Sakharam Bandiwadekar as the proprietor of Rabturns nor by the proprietorship concern namely, Rabturns through its proprietor Bhasker Sakharam Bandiwadekar nor by either of them through Constituted Attorney. The complaint was filed by Vilas Baliram Sawant, who claims to be constituted attorney of Bhasker Sakhararn Bandiwadekar .His verification statement was recorded by the Magistrate and the process was issued. That order was quashed in Revision Application by the Sessions Court.

Section 142(a) of the Negotiable Instruments Act, 1881, clearly 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. In the present case, the proprietorship is concern Rabtuns was the payee of the cheque. Therefore, the complaint under Section 138 of the Negotiable Instruments Act, 1881 could be filed either by the Rabturns the proprietorship concern through its proprietor or could be filed by Bhaskar Sakharam Bandiwadekar as proprietor of Rabturns who was a payee. In the present case, a complaint was not filed either by the Rabturns or by Bhaskar Sakharam Bandiwadekar. Complaint was filed by the complainant, who claims to be constituted attorney.

5. The learned counsel for the Applicant relied upon Shanker Finance & Investments v. State of Andhra Pradesh1 in support of his contention that the complaint could be verified by the power of attorney holder if he has personal knowledge of all the facts leading to the complaint. On perusal of the said judgment, it appears that in that case the complaint was filed by payee M/s. Shanker Finance & Investments and the title was M/s. Finance & Investments, a proprietary concern of Sri Atmakuri Shankara Rao, represented by its power of Attorney Holder Sri Thamada Satyanarayana. But the complaint was signed by the power of attorney holder on behalf of the complainant and he also verified it. It was contended that the complaint could not be filed through power of attorney holder. The Supreme Court observed thus:

“7. The payee of the cheque is M/s. Shankar Finance Investments. The complaint is filed by M/s. Shankar Finance & Investments, a proprietary concern of Sri Atmakuri Sankara Rao, represented by its power of Attorney Holder Sri Thamada Satyanarayana. It is therefore evident that the complaint is in the name of and on behalf of the payee. Section 142(a) of the Act requires that no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint m