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1996 Supreme(P&H) 1310
PUNJAB & HARYANA HIGH COURT
R.K.Jain, J.
Surinder Singh
Versus
John Impex (Pvt ) Ltd
Decided On : AUGUST 29, 1996
A complaint under Section 138 of the Negotiable Instruments Act, 1881 can be filed by a payee or a holder in due course through his duly authorized agent.
Headnote:
NEGOTIABLE INSTRUMENTS ACT - SECTION 138, 142 - COMPLAINT - AGENT - POWER OF ATTORNEY - VALIDITY - INTERPRETATION OF GENERAL POWER OF ATTORNEY - SCOPE OF AUTHORITY - FILING OF COMPLAINT UNDER SECTION 138 OF THE ACT BY AGENT - LEGALITY.
Fact of the Case:
The petitioners, Surinder Singh and his mother Puna Devi, were the owners of a property that was let out to the respondent company. The respondent company issued two cheques to the petitioners as rent for the property, but both cheques were dishonored due to insufficient funds. The petitioners filed complaints against the respondent company under Section 138 of the Negotiable Instruments Act, 1881, through their agent, Rajinder Singh, who held a general power of attorney on their behalf. The Sub Divisional Judicial Magistrate dismissed the complaints on the ground that Rajinder Singh had no authority to file the complaints.
Finding of the Court:
The High Court held that a complaint under Section 138 of the Act can be filed by a payee or a holder in due course through his duly authorized agent. The Court interpreted the general power of attorney granted to Rajinder Singh and found that he was authorized to do all acts necessary for the performance of his duties, including filing a complaint under Section 138 of the Act when a cheque issued towards the arrears of rent stands dishonored.
Issues: 1. Whether a complaint under Section 138 of the Negotiable Instruments Act, 1881 can be filed by an agent or power of attorney holder? 2. Whether the general power of attorney granted to Rajinder Singh authorized him to file a complaint under Section 138 of the Act?
Ratio Decidendi: 1. The Court held that Section 142 of the Act does not prohibit a complaint under Section 138 of the Act from being filed by an agent or power of attorney holder. The Court relied on the judgments of the Supreme Court in Vishwa Mitter V/s. O. P. Poddar and the Kerala High Court in Hamsa V/s. Ibrahim Hajee, which held that a complaint under Section 138 of the Act can be filed by an agent or power of attorney holder. 2. The Court interpreted the general power of attorney granted to Rajinder Singh and found that he was authorized to do all acts necessary for the performance of his duties, including filing a complaint under Section 138 of the Act when a cheque issued towards the arrears of rent stands dishonored. The Court held that the Sub Divisional Judicial Magistrate erred in not giving true meaning to the words used in the General Power of Attorney and thereby ignoring the real intention and object of the executant contained therein.
Final Decision: The High Court allowed the revision petition, set aside the order of the Sub Divisional Judicial Magistrate dismissing the complaints, and directed the Sub Divisional Judicial Magistrate to proceed with the complaint in the light of the observations made by the Court.
, J.
1. This order shall dispose of two criminal revisions Nos.195 and 197 of 1996, which involve common questions of law and facts.
2. Shri Surinder Singh, the petitioner in Cr. Revision No.195 of 1996 along with his mother Smt. Puna Devi, petitioner in Cr. Revision No.197 of 1996 and sister Smt. Satwant Kaur, is the owner of a house bearing No. A-56, Defence Colony, New Delhi. This property has been let out to respondent No.1. Respondent No.2 is the Managing director and respondent No.3 is the Director of respondent No.1, and are responsible for the business and affairs of respondent No.1-Company.
3. On 8.7.1995, respondent No.2 issued cheque for Rs.16.000/- drawn upon bank of India, Cannought Circus, New Delhi, in favour of the petitioner- Shri Surinder singh on account of rent of the said building. Similarly the said respondent issued a cheque dated 5.7.1995 for Rs.44,800/- drawn upon the same Bank in favour of Smt. Puna Devi on account of rent of the said building. Both these cheques were presented to Punjab and Sind Bank, Mohali, through Shri Rajinder Singh, holding General Power of Attorney on behalf of these petitioners. Both the cheque were dishonoured on account of being insufficient funds. Legal notices were issued on 9.9.1995, sent under registered cover on 12.9.1995, in addition to a copy sent under postal certificate. However, payment was not made within the prescribed limit of time. Consequently, both the petitioners filed complaints through Shri Rajinder Singh, holding the General power of Attorney on their behalf under Sec.138 of the Negotiable Instruments act, 1881 (hereinafter referred to as the Act ). After recording preliminary evidence, sub Divisional Judicial Magistrate, Kharar, has dismissed the complaint solely on the ground that Rajinder Singh has no power or authority on behalf of the complaintants to file these complaints. Feeling aggrieved Shri Surinder Singh and his mother Smt. Puna Devi have filed these petitions under Sec.482 of the Code of Criminal Procedure for quashing the order dated 14.2.1996, passed by the said Sub Divisional judicial Magistrate, and for a direction to decide the complaint in accordance with law on merits. Notice of motion was issued to the respondents.
4. I have heard the learned counsel for the parties and have gone through the record.
5. Shri P. K. Mutneja, Advocate, learned counsel for the petitioners, has argued that a complaint under Sec.138 of the Act can be filed by a payee or the holder in due course of the cheque through a duly appointed agent. It has been further argued that Rajinder Singh has been appointed a General Attorney by Sh. Surinder Singh and Smt. Puna Devi by General Power of Attorney dated 21.8.1979 (Annexure R2)whereby he has the necessary power to institute the complaints in question. In support of this plea the learned counsel has placed reliance upon a judgment of the apex Court rendered in Vishwa Mitter V/s. O. P. Poddar, A. I. R.1984 Supreme Court 5. Reliance has also been placed upon a judgment of the Kerala High Court in Hamsa V/s. Ibrahim hajee, 1993 ISJ (Banking) 722 : [vol.1 DCTC 647], and a judgment of the Madras high Court rendered in M/s. Ruby Leather Exports V/s. K. Venu Rep. Vandana chemicals etc. , 1994 (1) Crimes 820 : [vol.1 DCTC 742].
6. On the other hand Shri R. A. Jan, Advocate, learned counsel for the respondents, has argued that in view of the provisions of Sec.142 of the Act, a complaint under Sec.138 of the Act can be filed either by a payee or the holder in due course of the cheque, and none else. It has been further argued by the learned counsel that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other modes of performance are necessarily forbidden.
7. Respective arguments have been considered carefully. Sec.142 of the Act, so far as it is relevant for our purposes, reads as under :-
"notwithstanding anything contained in the Code of Criminal Procedu
