A power of attorney holder must have explicit knowledge of a transaction to competently file a complaint under Section 138 of the Negotiable Instruments Act.

COMMON JUDGMENT

The competence of a power of attorney holder to file a complaint under Section 138 of the Negotiable Instruments Act, 1881 [for short, ‘the Act’] and to depose on behalf the payee, arises for consideration in these two appeals. The former question is no longer res integra, while the latter, requires to be answered on the basis of the evidence adduced in trial.

2. The appellant in both these appeals is a partnership firm and was the complainant in C.C.Nos.57/2015 and 58/2015, both on the files of the Judicial First Class Magistrate Court-II, Kasaragod. The complaints were filed under Section 138 of the Act. Since the issues involved in these two criminal appeals are similar, and the disputes are also between the same parties, they are disposed of by this common judgment.

2. By the impugned common judgment dated 19.03.2016, the accused/first respondent was acquitted, challenging which, these appeals are preferred. The parties are referred to as they were in the impugned judgment.

3. The complainant had alleged that, on 08.08.2014 the accused had purchased gold ornaments from the complainant and in discharge of the said amount, issued two post-dated cheques for Rs.4,24,000/- and Rs.4,96,000/- bearing No.845075 and No.845076, both dated 25.08.2014 drawn on Corporation Bank, Kasaragod Branch. The said cheques, when presented for encashment, were dishonoured due to insufficiency of funds. The complainant further alleged that the registered notices issued to the accused were received on 11.12.2014 and since the accused failed to reply to the notices, the aforementioned two complaints were filed as C.C.Nos.57/2015 and C.C.No.58/2015 before the Judicial First Class Magistrate Court-II, Kasaragod.

4. The complaints were filed through the power of attorney holder of the Managing Partner of the complainant and the said attorney was examined on behalf of the complainant as PW1. After analysing the evidence adduced in the case, the learned Magistrate acquitted the accused in both the complaints, after arriving at the conclusion that the power of attorney holder had no knowledge of the allegations in the complaint, and further, that the execution of the cheque was not proved by the complainant. Thus, these two appeals, challenging the acquittals.

5. I have heard Sri.T.G.Rajendran, the learned counsel for the appellant as well as Sri.T.Madhu, the learned counsel for the first respondent and the learned Public Prosecutor.

6. The complaint was filed by M/s.Sulthan Gold International through its General Power of Attorney holder, Mr.Abdulla K.S. The power of attorney is marked in evidence as Ext.P1. The Managing Partner of the complainant had executed the power of attorney. During the evidence of PW1, specific questions were asked to the witnesses as to whether there was any resolution of the firm authorising the Managing Partner to execute a power of attorney which was answered in the affirmative. Subsequently, Ext.P15 consent letter issued by the remaining partners of the firm was produced. In view of the above, the authority of the Managing Partner to execute the power of attorney cannot be questioned.

7. The question regarding the authority of the power of attorney holder to file and depose on behalf of the complainant in a proceeding under Section 138 of the Act has been the subject of differing views. However, in A.C.Narayanan v. State of Maharashtra and Another [ (2014) 11 SCC 790 ], while resolving the conflict between the decisions of two co- ordinate Benches of the Supreme Court and that of various High Courts, it was held that the power of attorney holder can be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under of the NI Act. It was also h