Complaint for dishonour of cheque filed by power of Attorney holder must be signed by payee.

Common Order

Criminal Original Petitions No.1225 and 1226 of 2005 are filed to call for the records in C.C.No.7527 and 7764 of 2004 respectively on the file of XVIII Metropolitan Magistrate, Saidapet and quash the same. Criminal Original Petition No.1688 of 2005 is filed to set aside the order passed in Crl.M.P.No.284 of 2005 in C.C.No.7527 and 7764 of 2004 on the file of XVIII Metropolitan Magistrate, Saidapet and quash the same.

2. Petitioner is the accused in C.C.No.7527 and 7764 of 2004 pending on the file of XVIII Metropolitan Magistrate, Saidapet. She is alleged to have availed Rs.91,00,000/- as loan from the respondent / complainant agreeing to repay the same with interest. During the above transaction, on 25.09.2003, when the accused borrowed a sum of Rs.75,000/- on 25.09.2003, she issued three post dated cheques in repayment of the same and had also executed three promissory notes. When the three cheques were presented for collection, they were returned and dishonoured with the endorsement "Payment Stopped by the drawer". The complainant therefore issued a notice and after receiving the same, she did not make any payment. Subsequently, the petitioner/accused had also filed a civil suit in C.S.No.787 of 2004 on the file of this Court. The petitioner is alleged to have committed an offence punishable under section 138 of the Negotiable Instruments Act, on the basis of two private complaints initiated by respondent.

3. The point for consideration is as to whether a complaint under section 138 of Negotiable Instruments Act (hereinafter referred to as 'the Act') be filed by a Power of Attorney?

4. By going through the complaint, by reading of Section 142 of the Act and as senior counsel Mr.A. Natarajan submitted that by construing a strict interpretation of the above provision of law, no Court shall entertain any complaint for an offence under section 138 of the Act except to be filed by payee or drawer of the cheque; and in that case as the complainant was the power of attorney of the payee, it was decided on 17.12.2004 in Crl.O.P.No.3975 of 2004 before the Madurai Bench that the complaint filed by the power of attorney is not maintainable in the eye of law. That was reported in 2005(1) Crimes 423 (Ravi Kumar & another vs.R. Ramalingam rep.by Power of Attorney).

5. Senior counsel Mr. Sriramulu appearing for the respondent has drawn my attention to several case laws in this aspect including interpretation of statutes and non obstante clause contained therein and contended that the law as interpreted in 2005(1) Crimes 423 (cited supra) is incorrect view and that the same shall have to be reconsidered in dealing with this case.

6. My attention while deciding the case at Madurai above cited, was, by then not drawn to these case laws. Before ever a different view is taken upon the order passed already, I have also gone through several aspects of the case laws cited by the learned senior counsel on both sides.

7. Section 2 of Powers-of-Attorney Act, 1882 runs thus:

2. Execution under power-of-attorney:-The donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power, and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.

This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force.

8. Mr. V. Raghavachari, learned counsel for petitioner submitted by citing following case laws:

In M.Krishnammal Vs. T.Balasubramania Pillai (AIR 1937 Madras(FB) 937), it was held that vakalath though a kind of power of attorney, is confined to Pleader. Power of Attorney Agent cannot carry on business as Attorney or Solicitor. The principle involved is that act of Pleader is some