Point of Law : There is no specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint

ORDER :

This petition has been filed under Section 482 of the Code of Criminal Procedure ( Cr.P.C’ for short) with prayer to quash Annexure A4 order and further to quash Annexure A1 complaint and all further proceedings initiated against the petitioner in S.T.879/2021 on the file of Special Judicial First Class Magistrate Court (N.I. Act Cases) Kozhikode.

2. Heard the learned counsel for the petitioner as well as the learned counsel for the 2nd respondent. The learned Public Prosecutor appearing for the State of Kerala also was heard.

3. The learned counsel for the petitioner argued that the dismissal of Annexure-A3 petition filed by the petitioner by Annexure-A4 order is not justifiable. Therefore, Annexure-A4 order is liable to be quashed and in consequence thereof Annexure-A1 complaint and further proceedings initiated against the petitioner in S.T.No.879/2021 are liable to be quashed. The specific point argued by the learned counsel for the petitioner is that in the address portion of Annexure-A1 complaint, it has been averred that the complainant was represented by his power of attorney holder, but there is no mention of this fact in the body of the complaint. Further, Annexure-A1 complaint had to be verified by the power of attorney holder as if he was the complainant. According to the learned counsel for the petitioner, thus Annexure-A1 complaint was filed ignoring the statutory mandates as held in the decision reported in [2013 (4) KLT 21 (SC) : 2013 (4) KLJ 279 : AIR 2014 SC 630 : 2013 SAR (Criminal) 1181], A.C.Narayanan v. State of Maharashtra & anr. (hereinafter referred to as “A.C Narayanan first case”.

4. It is argued further that either in the complaint or in Annexure-A2 affidavit filed along with the complaint, nothing stated as regards to direct knowledge of the power of attorney holder regarding the transaction and he had witnessed the transaction. Decision of this Court reported in [2022 (4) KLT 592], Shibu v. Neelakantan also has been placed in this regard.

5. Per contra, it is submitted by the learned counsel for the 2nd respondent that there is absolutely no truth in the contentions raised by the petitioner herein. It is argued that certain relevant documents produced before the trial court were suppressed. Further point argued is that the complainant himself had filed proof affidavit under Section 145 of the Negotiable Instruments Act, as he proposed to give evidence regarding the transaction led to execution of the cheque. Therefore, AnnexureA1 complaint cannot be quashed and any such contention is a matter of evidence to be decided during trial.

6. While appreciating the rival contentions, it is relevant to refer the settled principles in A.C Narayanan first case. Following are the legal principles settled by the Apex Court in the above case.

“(i) Filing of complaint under Section 138 of NI Act through power of attorney is perfectly legal and competent.

(ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.

(iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.

(iv) In the light of Section 145 of NI Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the NI Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138