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2012(1) Bankmann 631 (All.)
ALLAHABAD HIGH COURT
Naheed Ara Moonis, J.
Amit Yadav —Petitioner
versus
State of U.P. and Anr. —Respondents
Application No. 3364 of 2009
Decided on 24.8.2011
For the Petitioner:Sharwan Kr. Mishra, Advocate.
For the Respondent:Govt. Advocate, A.K. Rai, D.K. Singh, Ram Sajivan, Advocates.
IMPORTANT POINT
Court cannot decline to take cognizance on sole ground that complainant was not competent to file complaint.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 142—Criminal Procedure Code, 1973—Sections 200 and 482—Dishonour of cheque—Summons issued—There is no illegality or perversity in complaint filed by holder of power of attorney who is fully empowered to file complaint—Opposite party has specifically stated that his wife has executed power of attorney in his favour and was authorised to file complaint—Cheque was deposited by him in her account in capacity of holder in due course who has knowledge of transaction between applicant and his wife—Even assuming that opposite party was not competent to file complaint no court can decline to take cognizance on sole ground that complainant was not competent to file complaint—Application dismissed. (Paras 9 and 10)
Naheed Ara Moonis, J.—Heard Shri Shrawan Kumar, the learned counsel for the applicant, Shri Ram Sajivan, the learned counsel appearing for the opposite party No.2 and the learned AGA.
2. The instant petition under Section 482 Cr.P.C. has been filed by Amit Yadav, challenging the summoning order dated 20.8.2008 in complaint case No.441 of 2008, whereby the applicant has been summoned under Section 138 Negotiable Instrument Act.
3. Prior to the filing of the present petition the applicant has approached this Court challenging the validity of the notice by means of Criminal Misc. Application No.3118 of 2008 on various grounds. This Court vide order dated 27.3.2008 set aside the summoning order dated 27.7.2007 and directed the trial court to summon the aggrieved person Urmila Devi who had issued the power of attorney in favour of her husband, the opposite party No. 2 for the purposes of examining her under Section 200 Cr.P.C. and further directing the court concerned to extend the time for filing the complaint under the proviso to clause (b) of Section 142 of Negotiable Instrument Act.
4. The court below in pursuance of the direction given by this Court had given an opportunity to Urmila Devi who had authorised the opposite party No.2 by filing a complaint afresh by giving benefit of Section 142 of the N.I. Act. But from the order of the trial court it appears that her statement was recorded under Section 200 Cr.P.C. and of the witness Surajpal as PW1 and after going through the evidence the photocopy of the cheque of rupees one lac dated 15.9.2006 and service of notice arrived at the conclusion that prima facie case is made out against the applicant and as such passed the order summoning the applicants under Section 138 N.I. Act.
5. It is vehemently argued by the learned counsel for the applicant that the complaint has been filed by the opposite party No.2 under Section 138 N.I. Act in respect of the two cheques issued by the applicant in favour of Urmila Devi which was presented before the bank and was dishonoured due to insufficient fund. Thereafter, Urmila Devi had given a legal notice on 19.2.2007 but the money was not returned. The opposite party No.2 filed a complaint, though he has no right to file complaint merely because he has been given the power of attorney on behalf of Urmila Devi. The opposite party No.2 is not an aggrieved person, therefore the complaint itself is barred by Section 9 and 142 of the N.I. Act, which run as follows:
“9. “Holder in due course”—“Holder in due course” means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if [payable to order,] before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.”
“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 one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138:
[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;]
(c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.”
6. While passing the order dated 27.3.2008 the another Bench of this court directed the aggrieved person who is the wife of the opposite party No.2 to file a complaint, yet only her statement was recorded under Section 200 Cr.P.C. and the court below has agai
