The attorney holder can file complaints on behalf of the payee as per the power of attorney, and the trial court cannot dismiss complaints after issuing process without entering into the trial of the case.

1. These two Cr. revision petitions had been clubbed together and are being disposed of by this common judgment.

2. These petitions have been filed by the complainant against two ditto orders of even date, 19.5.2012, whereby Id. 1st Additional Munsiff, (Judicial Magistrate), Srinagar has dismissed the two complaints, each titled, "Anwar Ahmad Pandith v Abdul Rashid Pandith" under sec. 138 of the Negotiable Instrument Act (for short the Act) instituted by the complainant/petitioner against the respondent.

3. Heard and perused the record.

4. Brief facts, which are necessary for disposal of these revision petitions, are that on 29-12-2011 petitioner through his Attorney Holder, Zeeshan Pandith, filed two separate complaints before the Id. 1st Additional Munsiff (judicial Magistrate), Srinagar under sec.138 of the Act against the respondent alleging inter alia that the two cheques, No. 03606078 dated 10.11.2011 and No. 03606079 dated 17.11.2011 issued by the respondent were dishonored. Ld. trial Court after recording initial statements of the complainant and the witness in each complaint and finding prima facie case under sec.138 of the Act against the accused, issued process against him.

5. Respondent caused his appearance before the Court in both the cases on 10.04.2012 through his counsel, who on the same day moved application in each case for dismissal of the complaint on the ground that the power-of-attorney on whose basis complaint has been filed does not authorize the attorney holder, Zeeshan Pandith, to file the said complaints. The attorney holder has been author#31;ized to do or execute all or any one of the acts mentioned in the power-of-attorney in connection with the court cases pending before the Court of law. The power of attorney does not authorize him to institute any complaint(s) under sec. 138 of the Act.

6. The Id. trial Court after obtaining objections of the complainant and hearing both the sides passed the impugned orders dismissing the complaints. The Id. Court took the view that under sec. 142 of the Act, a complaint can be made only by the payee of the cheque or as the case may be by the holder in due course of the cheque. The Id. Court was also of the view that the complaint can also be made by the attorney holder of the Payee, who has been specifically empowered in this behalf because in the latter case the attorney holder acts as an agent of the payee and not in his personal capacity. Ld. Court, however, also took the view that to initiate such action the attorney holder must be given the specific power by the payee. Having viewed thus, the Id. Court found that in these cases, specific powers were lacking because all that the complainant has asked the attorney holder to do is to represent him in civil and criminal cases "which were already pending in the courts when the power-of-attorney was executed and registered".

7. It may be restated precisely that the view taken by the Id. trial Judge is that in terms of sec. 142 of the Act a complaint for offence under sec. 138 of the Act can be made by the power-attorney-holder of the Payee. However, the Id, Judge dismissed the complaints taking the view that the law requires that to lodge such a complaint the attorney holder must have been given specific power by the payee but in this case specific power to institute fresh cases including complaints was lacking "because all that the complainant has asked the attorney holder to do is to represent the complainant in civil or criminal cases which were already pending in the courts when the Power of Attorney was executed and registered". The Id. trial Judge has, thus, concluded in both the cases that the "complaint has been filed by a person which had no authority to file the complaint" and dismissed the com#31;plaints.

8. It is also in the context to emphasize here that in the objections to the applications of the respondent/accused it was contended on behalf of the peti#31;tioner/complainant that the applications had b

Click Here to Read the rest of this document