A complaint under Section 138 of the Negotiable Instruments Act can be filed through a power of attorney, but the holder must demonstrate personal knowledge of the transaction, a requirement which may be verified in evidence.

ORDER

1.0. Vide this petition under Section 482 Cr.P.C, the petitioner has sought setting aside of the order dated 19.11.2019 of Ld. Magistrate, NI Act, South District, Saket Courts, New Delhi whereby the petitioner was summoned ("impugned order" in short) in complaint case no. 36939/2019 under Section 138 read with Section 142 of Negotiable Instrument Act, 1881 ("NI Act" in short) and quashing of the proceedings arising therefrom.

2.0. It is submitted that the aforesaid complaint has been filed by the complainant/respondent through his special power of attorney holder (`SPA' in short) on the ground that the respondent is working in Dubai with M/s M.K.B Public Network Services, L.L.C, U.A.E. But the SPA holder, neither in the complaint nor in the affidavit of pre-summoning evidence, has stated that she has personal knowledge of the transaction between the complainant/respondent and the petitioner. Therefore, in view of the settled position of law as laid down in A.C Narayan Vs. State of Maharashtra and Anr., [(2014) 11 SCC 790], the Ld. Magistrate erred in summoning the petitioner herein on the basis of hearsay evidence. The impugned order thus calls for setting aside.

3.0. On the other hand, Ld. counsel for the respondent submitted that the SPA duly mentions that the complainant Sh. Ankit Somani has appointed/nominated his mother-in-law Smt. Shanti Mehrotra, as his attorney, who is well versed with the entire matter/case. Therefore, the SPA holder is duly authorized and competent to file the complaint under NI Act and to pursue the same on the complainant's behalf. The ld. Magistrate after considering the material on record and pre-summoning evidence, has rightly summoned the petitioner herein.

3.1. Ld. counsel for the respondent further submitted that the petitioner would have all the opportunity to put his defence to the SPA holder/PW-1 in cross-examination.

4.0. I have duly considered the submissions made by both the sides.

5.0. It would be pertinent to refer at the outset to Section 142 NI Act, which provides for cognizance of offences under the Act. It 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) .........."

6.0. As per the above provision, the complaint under Section 138 NI Act can be made by the payee or the holder in due course. Learned counsel for the petitioner argued that though the complaint can be filed by the payee through attorney, there has to be specific averment in the complaint that the attorney has personal knowledge of the transaction between the parties, as laid down by the Hon'ble Supreme Court in A.C Narayan's case (supra).

7.0. Let me now revert to the facts of the present case. The complainant Ankit Somani filed the complaint under Section 138 NI Act through his special power of holder/his mother-in-law Ms Shanta Mehrotra.

7.1. The relevant part of the Special Power of Attorney reads as under:

"I, Ankit Somani, S/o Sh. Shiv Shankar Somani R/o J4/68-D, II Floor, Khirki Ext, Malviya Nagar New Delhi-110017, am unable to appear and look after legal proceedings to be initiated against Sh. Manoj Kumar Bisht, U/s 138 NI Act as I have to frequently travel abroad due to work and therefore hereby appoint, nominate my mother-in-law Mrs. Shanta Mehrotra, as my attorney as she is well versed with the entire matter/case to appear before the competent court of law for initiation of appropriate proceedings under the provisions of Negotiable Instrument Act and any other lawful proceedings."

7.2. The complaint in question was filed through SPA holder Ms Shanta Mehrotra me