IMPORTANT POINT
A power of attorney holder can file a complaint under Section 138 of the NI Act if he affirms knowledge of the facts in an affidavit, even if not stated in the complaint.

ORDER :

(Bechu Kurian Thomas, J.)

The competence of a power of attorney holder to file a complaint under section 138 of the Negotiable Instruments Act, 1881 (for short the 'NI Act'), in the absence of any averment in the complaint about the power of attorney holder's knowledge of the facts of the case, arises for consideration.

2. Petitioner is the accused in C.C. No.1783/2021 on the files of the Judicial First Class Magistrate's Court-XII, Thiruvananthapuram. The first respondent instituted a complaint alleging dishonour of a cheque issued to him and consequential refusal to repay the amount pursuant to the statutory notice. The cheque dated 06.08.2018 issued by the petitioner to the complainant for an amount of Rs.2,35,00,000/-(Rupees Two crores thirty-five lakhs) drawn on the ICICI Bank, CBD Belapur branch, towards the discharge of an existing liability was dishonoured.

3. As the complainant was allegedly abroad, the complaint was filed by the first respondent through his nephew -the power of attorney holder. Summons were issued after cognizance was taken on the basis of the complaint, the documents attached along with it and the affidavit of the power of attorney holder. After receipt of the summons, the petitioner has approached this Court under section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C') seeking to quash the proceedings contending that the power of attorney holder was not competent to institute the complaint.

4. Sri. Samsudin P., the learned counsel for the petitioner contended that the complainant had not pleaded in the complaint about the power of attorney holder's knowledge of the transaction involved in the case and hence the power of attorney holder could not have lodged the complaint. Referring to the decision in A.C. Narayanan v. State of Maharashtra and Another [(2014) 11 SCC 790], it was submitted that, since the power of attorney holder has not been stated to be a person who had seen or personally aware of the transaction involved in the case, he could not have lodged the complaint on behalf of the complainant and hence the complaint is liable to be quashed.

5. Sri. Philip T. Varghese, the learned counsel for the first respondent on the other hand contended that the complaint was filed supported by an affidavit of the power of attorney holder, wherein it is specifically stated that he is aware of the facts of the case. It was further submitted that the propositions laid down in Narayanan's case (supra) do not apply to the facts of the present case especially since, in a complaint under section 138 of the NI Act, the presence of the complainant is not necessary at the stage of taking cognizance. It was further pointed out that petitioner had earlier filed Crl.M.C No.5438/2022 and had later, withdrawn the said petition on 27-10-2022 without being given the liberty to file a fresh petition and hence he is estopped from filing this petition.

6. While considering the rival contentions, it needs to be borne in mind that a power of attorney holder is a competent person to file a complaint under section 138 of the NI Act. The aforesaid proposition has already been settled by various judgments. A Magistrate is entitled to issue process to the accused on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted in support of the complaint. If an affidavit is filed in support of the complaint, before issuance of the process under Section 200 of the Cr.P.C, the Magistrate has a discretion and is not bound to call upon the complainant to be examined to decide whether or not to issue process on the complaint under Section 138 of the NI Act. The Magistrate can rely upon the affidavit filed in support of the complaint under Section 138 of the NI Act.

7. In A.C. Narayanan v. State of Maharashtra and Another (2014) 11 SCC 790] the Supreme Court laid down the following propositions:

i) Filing of complaint under Section 138 of NI Act through power of attorney ho