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2009 Supreme(Raj) 928
[Citation : 2010(1) RLW 977 (Raj.)]
(Rajasthan High Court)
Chandrika (Smt.) Vs. State of Rajasthan & Anr. (Panwar, J.)
HON'BLE H.R. PANWAR, J.
Chandrika (Smt.) through her Power of Attorney Holder Sagar Mal
Versus
State of Rajasthan & Anr.
S.B. Criminal Misc. Petition No. 815 of 2006, decided on 21.07.2009
Himanshu Maheshwari, Advocate, for Petitioner;
A.R. Nikub, Public Prosecutor;
Usman Ghani, Advocate, for Respondent No. 2
Headnote:Negotiable Instruments Act, 1881, Sec. 138, 142; Cr.P.C., 1973, Sec. 482 — Locus standi of Power of Attorney of the payee to file complaint u/S. 138 of the Act of 1881 — On dishonour of cheque, a complaint can be filed by power of attorney holder in due course of the cheque — There is nothing in the Act of 1881 to show that the complaint must be filed by holder in due course personally — Anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance — No Court can decline to take cognizance on the sole ground that complainant was not competent to file complaint — Revisional Court fell in error in setting aside the order of taking cognizance and issuing process — Set aside.
Petition allowed. (Paras 10 to 12, 19, 20)
ijØkE; fy[kr vf/kfu;e] 1881] /kkjk 138] 142( na-iz-la-] 1973] /kkjk 482 & 1881 ds vf/kfu;e dh /kkjk 138 ds rgr ifjokn nk;j djus ds fy;s ikus okys ds eq[rkjukek dh Lohd`r fLFkfr & pSd vuknfjr gksus ij pSd ds lE;d~ vuqØe esa eq[;kjukek /kkjd }kjk ifjokn nk;j fd;k tk ldrk gS & 1881 ds vf/kfu;e esa ;g nkkZus gsrq ,slk dqN Hkh ugha gS fd ifjokn pSd ds lE;d~ vuqØe esa mlds /kkjd }kjk O;fDrxr :i ls nk;j fd;k tkuk pkfg;s & dksbZ Hkh O;fDr laKku ysus ds gdnkj fdlh Hkh eftLVªsV ds le{k vijk/k dk xBu djus okys rF;ksa dk ifjokn nk;j dj QkStnkjh dkuwu dks pkyw dj ldrk gS & dksbZ Hkh U;k;ky; ek= bl vk/kkj ij laKku ysus ls badkj ugha dj ldrk fd ifjoknh ifjokn nk;j djus esa l{ke ugha Fkk & laKku ysus ,oa vknsfkdk tkjh djus ds vknsk dks vikLr djus esa iqujh{k.kh; U;k;ky; us =qfV dh & vikLr fd;kA ¼in la[;k 10 ls 12] 19] 20½
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2. The facts and circumstances giving rise to the instant criminal misc. petition are that a complaint was filed by petitioner-Chandrika (Smt.) through her Power of Attorney Holder Sagar Mal who is her husband, for the offence under Section 138 of the Act of 1881 against the respondent No. 2 M/s. Handloom House through its proprietor Shri Vijay Kumar Dua before the trial Court. The trial Court took the cognizance of the offence under Section 138 of the Act of 1881 against the respondent No. 2 on 29.4.2004 and issued the process. Thereafter an application was filed by the respondent No. 2 for recalling of the order taking cognizance and the same was dismissed by the trial Court and thereafter, the order taking cognizance came to be challenged by the respondent No. 2 by way of a criminal revision before the revisional Court being Criminal Revision Petition No. 77 of 2004. The revisional Court set aside the order of taking cognizance solely on the ground that Section 142 of the Act of 1881 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 According to revisional Court, the complaint was though filed in the name of payee but it was filed through Power of Attorney and payee herself did not appear and filed the complaint and as such, the complaint is not maintainable. Aggrieved by the order of revisional Court, the petitioner has filed the instant misc. petition.
3. I have heard learned counsel for the parties.
4. It is contended by learned counsel for the petitioner that the requirement as envisaged under Section 142 of the Act of 1881 to file the complaint is that a complaint should be filed in the name of payee or the holder in due course of the cheque and not that the payee or the holder in due course of cheque should personally appear before the Court and filed the complaint. Learned counsel for the petitioner has relied on the decisions of Hon'ble Supreme Court in M/s. M.T.T.C. Ltd. & Anr. vs. M/s. Medical Chemicals and Pharma (P) Ltd. & Anr., AIR 2002 SC 182, in M/s Shankar Finance & Investments vs. State of Andhra Pradesh & Ors., AIR 2008 SC 1017, a decision of Kerala High Court in Hamsa vs. Ibrahim, ILR 1994(1) Kerala 622, in K. Gopalakrishana vs. Karunkarann represented by the Power of Attorney Holder, 2007(2) NIJ 258 (Mad.) (DB), in Aashirwad Enterprises vs. Sambhar Salts Ltd., 1997(3) RCR (Cri.) 221 (Raj.) = RLW 1997(1) Raj. 675, in Ajay Kumar Jain vs. State of Rajasthan, 2008 Western Law Cases (UC) (Raj.) 229, in Mohil Fibers vs. Shri Saai Agro Industries & Anr., 2007(1) NIJ 451 (MP) and in Muthukaruppan vs. Raghavan, 2007(1) NIJ 68 (Mad.).
5. Learned counsel appearing for the accused-respondent has relied on a decision of Single Bench of this Court in Smt. Lalita Hundiya vs. Govind Narayan Khuteta & Anr., 2008(1) RCC 410.
6. I have given my thoughtful consideration to the rival submission made by learned counsel for the parties and carefully gone through the material on record:
7. Section 142 of the Act of 1881 deals with the cognizance of offences under the Act of 1881, which reads as under :-
"142. Cognizance of offences.—Notwithstanding anything contained in the Code of Crimina
