Complaint for offence u/s 138 to be filed either by payee's advocate or power of attorney.

A complaint alleging offence punishable under Sec.138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act”) was filed by the petitioner through his pleader. The complainant could not be present before the court on the day of presentation of the complaint as he was hospitalised due to a motor accident. The complaint was filed on the last day of limitation, but the same was returned by the Judicial First Class Magistrate's Court II, Ernakulam holding that there is no provision in the Code of Criminal Procedure enabling the court to receive a complaint under Sec.200 of the Code in the absence of the complainant. This order is under challenge. So, the question to be considered in this petition is whether a complaint could be presented before the court by a pleader in the absence of the complainant.

2. Sec.190 Crl.P.C. empowers a Magistrate to take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts, and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Sec.200, Crl.P.C. deals with the procedure in case a complaint is filed before the Magistrate. The Magistrate taking cognizance of the complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate, But the proviso to Sec.200, Crl.P.C. makes it clear that when the complaint is made in writing, the Magistrate is not bound to examine the complainant and the witnesses, if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint and/or if the Magistrate makes over the case for enquiry or trial to another Magistrate under Sec.192.

3. Sec.142 of the Act provides thus:

“Cognizance of offences: Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974):

(a) no court shall take cognizance of any offence punishable under Sec. 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.

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Sec.138.

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Sec. 138.”

4. It is clear from Sec.142 of the Act that court can take cognizance of an offence or as the case may be, the holder in due course of the cheque. The present complaint is filed by the payee of the cheque. So, the court is empowered to take cognizance of the same. But the complainant was not present before the court for his examination on oath. Examination of the complainant is also compulsory in a case like this, before taking cognizance. It is not compulsory that cognizance should be taken on the date of presentation of the complaint. It could be taken on any subsequent day also on examination of the complainant. So, when a complaint is filed by a pleader in the absence of the complainant the court is not disabled from taking cognizance of the offence. At the most, it could be said that the court was not in position to take cognizance on the day on which the complaint was presented.

5. As already stated, the complaint was presented by the pleader of the complainant. A pleader in whose favour a vakalath has been executed by the complainant, is duly competent to represent the complainant. Form No.57 of the Criminal Rules of Practice, 1982 prescribes the form of Vakalath which is extracted hereunder:

“Vakalath

In the Court of…………..

C.C. }

M.C. }

C.P. } No……..of 19….

Appeal}

S.T. } (Case title)

I/We………do hereby appoint and retain Sri……………………….. Advocate, to appear for me/us in the above and to conduct and prosecute or defend the