Court can take cognizance upon sworn statement of Power of Attorney Holder.

(Criminal Original Petition is filed under Section 482 of the Criminal Procedure Code as stated therein.)

P. Sathasivam, J.

The petitioner K. Gopalakrishnan, an accused in a case filed under Section 138 of the Negotiable Instrument Act for alleged dishonouring of the cheque issued to the respondent herein on 05.07.2004, seeks to quash the said case in C.C.No.93 of 2005 on the file of Judicial Magistrate No.II, Chidambaram.

2. According to the petitioner, there is no legally enforceable debt for the issuance of the cheque in dispute. The other main contention of the petitioner is that the complaint was preferred by the respondent herein, in violation of the guidelines issued by this Court in 2005 (3) CTC 480 (Y. Vijayalakshmi @ Rambha vs. Manickam Narayanan, Proprietor, Seventh Channel Communications represented by its Power of Attorney Agent, Thanigaivelan), wherein the learned single Judge (S.R. Singharavelu, J.) has held that the complaint shall be signed by the payee himself and not by the Power of Attorney holder and that the sworn statement of the complainant also shall be recorded by the Judicial Magistrate while taking cognizance of the offence under Section 138 of the Negotiable Instruments Act. Relying on the said decision, the learned counsel for the petitioner contended that the complaint was filed and signed by the Power of Attorney and above all, the Power of Attorney entered the box and gave the sworn statement and hence, in the absence of original complaint, the proceedings in C.C.No.93 of 2005 are liable to be quashed.

3. When the above petition came up for hearing, M. Jeyapaul, J., on going through Section 142 of the Negotiable Instruments Act, Full Bench decision of the Andhra Pradesh High Court in the case of Ramachandra Rao K. vs. State of A.P. reported in 2005 (2) CTC 417 as well as the decisions of this Court in 1994 (1) Law Weekly (Cri.) 34 (Ruby Leather Exports etc., vs. K. Venu, etc. (T.S. Arunachalam, J.), and (1997 (2) Law Weekly (Cri.) 637), B. Mahendra Jain vs. C.K. Mohammed Ali (M. Karpagavinayagam, J.), unable to accept the view expressed by S.R. Singharavelu, J. in Vijayalakshmi case (2005 (3) CTC 480), and referred the matter to be decided by a Larger Bench. Accordingly, on orders of the Hon'ble Chief Justice, the above petition has been posted before us. Heard Mr. V. Bhiman, learned counsel for the petitioner, Mr. S. Ashok Kumar, learned senior counsel as amicus curiae to assist the Court and Mr. M. Babu Muthu Meeran, Additional Public Prosecutor.

4. The points raised in the order of reference dated 25.01.2006 made by M. Jeyapaul, J. are as follows:

1. Whether the complaint shall be signed by the power of attorney holder on behalf of the complainant?

2. Whether the production of affidavit of the complainant in proof of execution of the power of attorney in his favour is necessary?

3. Whether the sworn statement of the complainant is also required to be recorded on a future date on his appearance in the Court to enable the Court to exercise its discretion under Sections 202 and 203 of the Code of Criminal Procedure?”

5. Before considering the issues mentioned above, it is useful to refer the decision of S.R.Singharavelu, J. in Vijayalakshmi case (2005 (3) CTC 480). The question that was raised before the learned Judge is as to whether a complaint under Section 138 of Negotiable Instruments Act, 1881, can be filed by a Power of Attorney? The learned Judge, after referring Section 142 of the Negotiable Instruments Act, and various decisions relating to Powers of Attorney Act, 1882, in connection with said provision, has concluded that complaint can be presented by General Power of Attorney on behalf of the payee, provided,

“(i) the complaint shall be signed by the payee himself;

(ii) there shall be also an affidavit of the complainant in proof of his execution of General Power of Attorney; added to the production of the said Power of Attorney document;

(iii) sworn statement of General Power of