The attorney holder cannot file a complaint in his own name but can initiate criminal proceedings on behalf of the principal.

JUDGMENT :

SHARAD KUMAR SHARMA, J.

1. This case in itself is the best example of an abuse of process of law, where a professional applicant an ex-member of Bar Council, has preferred this C-482 Application, thereby challenging the summoning order dated 13th July, 2015, for the first time by filing C-482 Application on 24th August, 2023, i.e. almost after eight years, as it was issued against him, in Complaint Case No. 2501 of 2015, Bhuwan Chandra Joshi vs. Himanshu Sinha, by the Court of 2nd Addl. Civil Judge/Judicial Magistrate, Haldwani, District Nainital, being the proceedings drawn under Section 138 of the N.I. Act.

2. The argument extended by the learned counsel for the applicant is, that the summoning order happens to be in violation to the provisions contained under Section 142 (a) of the Negotiable Instruments Act, for the reasons being, that in accordance with Para 1 of the complaint, he contends that since the complainant is an agent of an institution named as J.B. Brothers, of which, Mr. Jeevan Chandra Joshi, was one of the proprietors, who was admittedly the complainant’s younger brother.

3. The learned counsel for the applicant has submitted, that in the light of the judgment of the three-Judges Bench of the Hon’ble Apex Court as reported in A.C. Narayanan vs. State of Maharashtra and Another, (2014) 11 SCC 790 a question was formulated therein, was as to whether an agent can institute a complaint on behalf of the principle under Section 138 of the Act, i.e. on behalf of a Firm. The said question finds reference in Para 21 of the said judgment, which reads as under:

“21. In terms of the reference order, the following questions have to be decided by this Bench:

21.1. Whether a Power of Attorney holder can sign and file a complaint petition on behalf of the complainant?/Whether the eligibility criteria prescribed by Section 142(a) of NI Act would stand satisfied if the complaint petition itself is filed in the name of the payee or the holder in due course of the cheque?

21.2. Whether a Power of Attorney holder can be verified on oath under Section 200 of the Code?

21.3. Whether specific averments as to the knowledge of the Power of Attorney holder in the impugned transaction must be explicitly asserted in the complaint?

21.4. If the Power of Attorney holder fails to assert explicitly his knowledge in the complaint then can the Power of Attorney holder verify the complaint on oath on such presumption of knowledge?

21.5. Whether the proceedings contemplated under Section 200 of the Code can be dispensed with in the light of Section 145 of the N.I. Act which was introduced by an amendment in the year 2002?”

4. In fact, in nutshell, if Para 21.1 is taken into consideration, it was dealing with Section 142 (a), raising a question to the effect, that as to, whether, the attorney holder can sign! and file a complaint petition! on behalf of the principle complainant and whether the eligibility criterion prescribed under Section 142 (a) would stand satisfied. The said answer has been given by the Hon’ble Apex Court in Para 28 of the said judgment, which is extracted hereunder:

“28. The power-of-attorney holder is the agent of the grantor. When the grantor authorizes the attorney holder to initiate legal proceedings and the attorney holder accordingly initiates such legal proceedings, he does so as the agent of the grantor and the initiation is by the grantor represented by his attorney holder and not by the attorney holder in his personal capacity. Therefore, where the payee is a proprietary concern, the complaint can be filed by the proprietor of the proprietary concern, describing himself as the sole proprietor of the payee, the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor, and the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor. However, we make it clear that the power of attorney holder canno