Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 991 (RAJ)

Rakesh Raja v. Naru Mohammed Sheikh

2005-04-04

H.R.PANWAR

body2005
Honble PANWAR, J.–By the instant revision petitioner under Section 397/401, CrPC, petitioner-complainant has challenged the order dated 13.08.2004 passed by the Additional Sessions Judge (Fast Track) No. 1, Bhilwara (for short, ``the revisional Court hereinafter) in Criminal Revision Petition No. 22/2004, by which the revisional Court set-aside the order dated 30.04.2004 passed by the the Judicial Magistrate, Mandal (for short, ``the Trial Court hereinafter) Criminal Original Case No. 114/2004 taking cognizance of the offence under Section 138 of the Negotiable Instruments act (for short, ``the Act) against non-petitioner Naru Mohammed Sheikh. (2). Briefly stated, the facts of the case are that on 13.08.2003, a complaint under Section 138 of the Act was filed by the petitioner before the Trial Court through his Counsel Mr. Manohar Lal Verma in the name of complainant-petitioner Rakesh Raja; however, the complaint was not signed by the complainant- petitioner but it was signed by the Counsel Mr. Manohar Lal Verma. On this, the Trial Court recorded the statement of complainant-petitioner under Section 200, CrPC and took cognizance of the offence under Section 138 of the Act against the non-petitioner and issued process vide order dated 30.04.2004. Being aggrieved with the order of the Trial Court taking cognizance, the accused/non-petitioner preferred a revision petition before the revisional Court, which has been allowed vide impugned order dated 30.08.2004. Hence, this revision petition. (3). I have heard learned counsel for the parties and perused the impugned order. (4). The revisional Court allowed the revision petition and set aside the order passed by the Trial Court taking cognizance of the offence under Section 138 of the Act, on the ground that Section 142 of the Act provides that the complaint should be filed by the person who is entitled to receive the cheque amount or who is the holder of the cheque but the complaint has been filed by the Counsel of the complainant and no reason has been assigned for the absence of the complainant. The revisional Court also held that despite mention of the name of the complainant in the complaint, the complaint has not been signed by the complainant but has been signed by his Counsel Mr. Manohar Lal Verma. Section 142 of the Act reads as under:– ``Sec. 142. The revisional Court also held that despite mention of the name of the complainant in the complaint, the complaint has not been signed by the complainant but has been signed by his Counsel Mr. Manohar Lal Verma. Section 142 of the Act reads as under:– ``Sec. 142. 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 Section 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 Section 138; Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period; (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138 (5). A bare perusal of language of Section 142 of the Act makes it clear that the essential requirements for taking cognizance of the offence under Section 138 of the Act are that there should be a complaint in writing by the payee or the holder of the cheque before the competent Court within one month of the date of arising the cause of action. There is no condition precedent that the complaint should have been signed by the payee or holder of the cheque. (6). In M/s. MMTC Ltd. & Anr. vs. M/s. Medchl Chemicals & Pharma (P) Ltd. & Anr. (1), the complaint was lodged by Manager or Deputy General manager who had no been authorised by Board of Directors to sign and file the complaint on behalf of the company and the Honble Apex Court observed that it cannot be a ground from quashing the complaint because the defect is curable. The Apex Court further held as under:– ``In our view the reasoning given above cannot be sustained. Section 142 of the Negotiable Instruments act provides that a complaint under Section 138 can be made by the payee or holder in due course of the said cheque. The Apex Court further held as under:– ``In our view the reasoning given above cannot be sustained. Section 142 of the Negotiable Instruments act provides that a complaint under Section 138 can be made by the payee or holder in due course of the said cheque. The two complaint, in question, are by the appellant Company who is the payee of the two cheques. This Court has as far back as, in the case of Vishwa Mitter vs. O.P. Poddar in 1983 (4) SCC 701 , held that it is clear that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. It has been held that no court can decline to take cognizance on the sole ground that the complaint was not competent to file the complaint. It has been held that if any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, then the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute. In the present case the only eligibility criterion prescribed by the statute. In the present case the only eligibility criterion prescribed by Section 142 is that the complaint must be by the payee or the holder in due course. This criterion is satisfied as the complaint is in the name and on behalf of the appellant company. (7). In K.M. Margegowda vs. S.H. Ex-Import Corporation, Bangalore (2), the Karnataka High Court, the complaint was filed by the Power of Attorney-holder of the complaint. The Magistrate recorded the statement of Power of Attorney-holder and issue process. The Karnataka High Court held that it is a sufficient compliance of Section 200, CrPC and the order taking cognizance is not vitiated. The Court further held as under:– ``In view of the above, when the power of attorney holder of the complainant, who had stepped into the shoes of the complainant, was examined on oath and not the complaint as such, who could not have been examined at any time in any manner, such a thing cannot be taken as vitiating the cognizance or complaint, as the case may be. (8). (8). In Ranjan George vs. State of Kerala (3), the complaint under Section 138 of the Act was filed by the complaint through pleader, which was returned by the Magistrate holding that the complaint could not be received in absence of complaint. The Kerala High Court observed that the impugned order was not conducive to interest of justice and held that the Court was not disabled from taking cognizance of the offence when complaint was filed by a pleader in absence of the complainant. The Kerala High Court further held as under:– ``There is nothing is Section 142 of the Act which makes it mandatory on the complainant to file the complaint personally. It can even be filed by a duly authorised person like his advocate or power of attorney. This Court in the decision reported in Hamsa vs. Ibrahim, ILR 1994 (1) Kerala 622, held that a complaint could be filed through the power of attorney. It is stated therein that if the payee or holder in due course falls ill on the last day of the expiry of the period prescribed or if has to leave the station due to unavoidable reasons, the cause of action would die out as the complaint cannot be filed by an agent or a power of attorney holder. This Court further held that it would not be in the interest of attorney holder. This Court further held that it would not be in the interest of justice to construe the provision as containing a restriction that the complaint should be made by the payee of the holder in due course, as the case may be `personally. So, the insistence on the part of the Court that the complaint will be accepted only if the same was presented by the complaint personally is not conducive to the interest of justice and hence uncalled for. (9). In the instant case, the complainant-petitioner engaged Mr. Manohar Lal Verma as his Counsel by signing the Vakalatnama. There is no condition precedent in Sec.142 of the Act that the complaint must be signed and presented by the complainant himself. A pleader in whose favour a Vakalatname has been executed by the complainant, is duly competent to appear for the complainant in the case and do conduct, prosecute or defend the same. There is no condition precedent in Sec.142 of the Act that the complaint must be signed and presented by the complainant himself. A pleader in whose favour a Vakalatname has been executed by the complainant, is duly competent to appear for the complainant in the case and do conduct, prosecute or defend the same. So it cannot be said that in case of a valid reason for the absence of the complainant or want of his signature on the complaint, the compl- aint cannot be presented by his pleader. It is the complainant who is the payee of the cheque and will derive ultimate benefit. It this view of the matter, the Trial Court was justified in taking cognizance of the offence against the non- petitioner and, therefore, the revisional Court fell in error in law and on facts in allowing the revision petition filed by the accused/non-petitioner and setting aside the order of the Trial Court. (10). Consequently, the revision petition is allowed. The impugned order dated 13.8.2004 passed by the revisional Court is set-aside. The order dated 30.4.2004 passed by the Trial Court taking cognizance against the accused/non-petitioner is restored.