The importance of presenting the complaint within the prescribed time and the distinction between filing the complaint and the court's cognizance under Sections 138 and 142 of the Negotiable Instruments Act.

1. The petitioner is the accused in S.T.C. No.236 of 2005 on the file of the Judicial Magistrate No.I, Madurai. The respondent is the complainant which he has laid on the strength of a cheque dated 7.11.2002 issued by the petitioner for a sum of Rs.50,000/-.

2. When the cheque was presented for collection through his bankers it was returned with an endorsement `funds insufficient hence the respondent issued statutory notice to the petitioner calling upon him to pay the cheque amount within 15 days time from the date of receipt of the notice. Since he had not repaid the amount, the respondent filed a Complaint before the above said Court through his power agent one K.R. Krishnamoorthy.

3. At the time of filing the Complaint, it did not accompany the original power of attorney deed, however Xerox copy of the same was enclosed. Hence the said Court returned the Complaint with an endorsement to the effect that the original power of attorney deed should be produced. On 19.3.2003 the Complaint was represented along with the original power of attorney deed.

4. Mr. Gandhi, learned counsel for the petitioner would strenuously contend that as per the allegations in the Complaint the cause of action arose on 5.12.2002 and hence on or before 5.1.2003 the Complaint should have been represented along with the original power of attorney deed and hence the failure on the part of the complainant to represent beyond the said date leaving the matter to get time barred is illegal and the Court should not have taken cognizance of the matter.

5. Mr. T.R. Subramanian the learned counsel for the respondent conversely would contend that even though the original power of attorney deed was not produced along with the Complaint at the first instance, the subsequent production of the same on 9.3.2003 will not lead to any irregularity or illegality and the cognizance taken by the Judicial Magistrate is legally valid.

6. The learned counsel for the petitioner would garner support from a decision of this Court reported in M.A. Abdul Khuthoos vs. M/s. Ganesh & Coy Oil Mills, 1999 (3) Crimes 83 (Mad.), wherein it is held that in case if the Complaint was returned which was not bearing the signature of the complainant and it was represented with the signature beyond the period one month from the date of commencement of cause of action the proceedings would not stand and they are liable to be quashed.

7. The learned counsel for the respondent would argue that the above said decision is not at all applicable to the facts of the present case for the reason that in this case the facts are distinguishable. He submits that in the case on hand there are no such circumstance where a Complaint was presented without signature of the complainant but it was duly signed by the tower of attorney and the Complaint was filed along with Xerox copy of the ower of attorney deed. It is further submitted that the subsequent production of the power of attorney deed along with the Complaint would cure the defect and it is not illegal. He placed reliance upon a decision of a Division Bench of this Court reported in K. Gopalakrishnan v. Karunakaran, 2006 Cri.L.J. 4365, in which is observed as follows:

“.... It is therefore clear that even though the General Power of Attorney at initial stage failed to produce the deed of power of attorney or the affidavit of the complainant in proof of execution of power of attorney, the same can be rectified by producing the same at a later stage of the proceedings as and when the validity of the power of attorney is questioned by the accused and the Court could then be called upon to decide the genuineness..."

8. As per the findings given in the above said decision, even though the power of attorney deed was not presented at the initial stage, the defect could very well be rectified even on the occasion of subsequent proceedings of the case and if the accused so desires, he may very well agitate the validity of the power of attorney de