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2008 DIGILAW 297 (RAJ)

Ajay Kumar Jain v. State of Rajasthan

2008-01-31

DALIP SINGH

body2008
JUDGMENT 1. - Heard learned counsel for the petitioner. 2. This petition has been filed by the accused petitioner challenging the order by which cognizance was taken for the offence under Section 138 of the Negotiable Instruments Act, 1881 by the learned Magistrate on the complaint filed by the non-petitioner No.2. Learned Magistrate dismissed the application vide order dated 28.07.2004. The petitioner preferred a revision petition which too was dismissed by the learned revisional court vide order dated 20.12.2005. Hence, this petition. 3. In the present petition under Section 482 Cr.P.C. the petitioner has challenged the order passed by the learned Magistrate taking cognizance for the offence under Section 138 of the Negotiable Instruments Act, 1881 against the petitioner primarily on the ground that the complaint filed by the non-petitioner No.2 was filed by the power of attorney holder. In the complaint, the complainant has been described as follows: "Smt.Champa Godha wife of Shri Vinay Kumar Godha, by caste Jain, resident of 152, Sarawgi Mansion, M.I.Road, Jaipur through power of attorney holder Ramavtar Jain son of Brij Mohan Jain." 4. The objection which has been raised is that under the provisions of Section 138 read with Section 142 of the Negotiable Instruments Act, 1881, the complaint was required to be filed by the complainant herself and the power of attorney holder has no right to file the complaint. In view of the above fact that the complaint in the instant case was filed by the power of attorney holder, the cognizance based upon the said complaint could not be taken. The courts below have held that there is no bar under the provisions of Section 138 or under Section 142 of the Negotiable Instruments Act, 1881 on account of which the complaint could not have been filed by the power of attorney holder. 5. In this matter it would be useful to extract the provisions of Section 142 of the Negotiable Instruments Act, 1881: "142. 5. In this matter it would be useful to extract the provisions of Section 142 of the Negotiable Instruments Act, 1881: "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. 6. A reading of Section 142 of the Negotiable instruments Act, 1881, quoted above, goes to show that as per clause (a) the requirement is that the complaint must be in writing, made by the payee or the holder in due course of the cheque. In view of the above provision, it cannot be held that the complaint could not be presented by the power of attorney holder. The requirement of Section 142 of the Negotiable Instruments Act, 1881 is that the complaint should be made by the payee. As would be evident from the title of the complaint which has been quoted above in translation from Hindi, the complainant is Smt.Champa Godha wife of Vinay Kumar Godha. Thus, the complaint has been made by the payee herself and the power of attorney holder has only been authorised by her to file the complaint in court. In that view of the matter, the objection which has been raised to my mind is of no force. 7. This question has come up before the several High Courts and has been answered in favour of the complainant where the complaint was filed through the power of attorney holder. In Anil G. Shah v. J. Chittranjan Co. In that view of the matter, the objection which has been raised to my mind is of no force. 7. This question has come up before the several High Courts and has been answered in favour of the complainant where the complaint was filed through the power of attorney holder. In Anil G. Shah v. J. Chittranjan Co. & Another reported in 1998 (2) Crimes 347 , the Gujarat High Court while dealing with a similar situation where the complaint had been filed by the complainant described as follows: "G.L. Shah, through authorised representative and constituted attorney Anil G.Shah. "Sanskrut", 2nd Floor, Navrangpura, Ahmedabad." 8. The learned Single Judge of the Gujarat High Court held in para No.11 of the report as follows; "11. It must be remembered that Section 142 does not lay down that the complaint must be filed by the payee personally. If the interpretation which learned advocate for the respondent wants me to accept, then it would mean that the complaint must be filed by payee personally. When Section 142 itself does not specifically say that the complaint must be lodged by the complainant personally and when it is also not the case of the public officer lodging the complaint, the lodging of the complaint by the power of attorney holder of the payee could not be said to be illegal or invalid." 9. A similar question also arose before the Madhya Pradesh High Court in the case of Dr. Anil Kumar Haritwal and Another v. Sant Prakash Gupta reported in 2001 (3) CCC 304 (M.P.) : 2001 Cri.L.J. 3632 . The learned Single Judge of the Madhya Pradesh High Court went into the question in detail and virtually considered all the judgments which were available on the question. Para Nos.21 and 22 of the said judgment, may be reproduced for reference: "21. Learned counsel for the respondents placed reliance on 1994 (1) BC 314 (Kerala High Court) in the case of Hamsa v. Ibrahim , in which the respondent signed the complaint as power of attorney holder of complainant and the Magistrate took cognizance of offence. The High Court held that there is no illegality. The payee or holder in due course of a cheque can file a complaint in court under Section 142 of N.I.Act through his power of attorney holder. In 1995 Cri. The High Court held that there is no illegality. The payee or holder in due course of a cheque can file a complaint in court under Section 142 of N.I.Act through his power of attorney holder. In 1995 Cri. L.J. 1102 (Mani Mokalai v. Chapaldas Kalyanji Sanghvi) , the same view was expressed that the power, of attorney holder is authorised to file complaint. In 1996 (2) BC 382 (Calcutta High Court), it was held that even a cheque can be issued by the power of attorney towards partial discharge of debt. In 1997 (1) BC 247 (Surinder Singh v. John Impes (Pvt. Ltd.) (Punjab and Haryana High Court) , it is held that there is no requirement that the complaint can be filed only by payee or holder in due course personally and not through his duly authorised agent. In the case of Payyatisavitri Devi v. Malireddy Damayanthamma Rep. by G.P.A., reported in 1992 (2) BC 561 : (1997 Cri. L.J. 3862) (A.P. High Court) , the competency of General Power of Attorney to file complaint was considered and held that the person holding power of attorney is competent to institute complaint under Sec.138 of the Neotiable Instruments Act. In 1998 (2) BC 108 : 1998 Cri. LJ. 3870) Anil G. Shah v. J. Chittranjan Co. , the Gujarat High Court also held that the complaint filed by the power of attorney holder is maintainable and the complaint lodged by him is not illegal or invalid. 22. Learned counsel for the respondents further relied upon 1998 DCR 310 (Kerala High Court) and referred to paras 7 to 9, in which it is held that complaint can be filed by duly authorised person like Advocate or power of attorney and insistence on part of Court that complaint will be accepted only if same was presented by complainant personally is not conducive to interest of justice particularly when it was filed on last day of limitation and complainant was hospitalized. In 1998 DCR 346 , the Bombay High Court held that the complaint filed by person holding power of attorney from complainant was not liable to be quashed merely because complaint in title did not mention that fact. Para 9 of that case was referred. In 1998 DCR 346 , the Bombay High Court held that the complaint filed by person holding power of attorney from complainant was not liable to be quashed merely because complaint in title did not mention that fact. Para 9 of that case was referred. Reliance is further placed by the counsel for the respondents on 1999(2) BC 561 : (1997 Cri.L.J. 3862) (A.R High Court) to contend that the power of attorney holder is authorised to file complaint. In 1999 (1) B.C. 296 (Kerala High Court) it is held that the power of attorney should be permitted to file complaint. In 1999 DCR 201 (Bombay High Court), in which the complaint was filed by the Company through its Manager, it is held that the same is not open to challenge; however, the proof of authorisation is required to be adduced at the time of trial. Paras 15, 20 and 22 were referred to. Further in 1999 DCR 306 , Gujarat High Court held that the complaint by power of attorney holder of payee or the holder, in due course, can be filed and the power of attorney holder can act on behalf of the payee or the holder. Reliance is also placed on the decision of the Kerala High Court, reported in 2000 DCR 473 , wherein it is held that the attorney holder of payee is entitled to act under Section 27 of the General Clauses Act, 1897." 10. Thus, it would be seen that most of the High Courts in the country 50 whose judgments have been referred to by the learned Single Judge of the Madhya Pradesh High Court have in fact held that there was no necessity for the complainant to file the complaint in person and the complaint could be filed through the power of attorney holder. 11. To my mind the distinction between the making of the complaint by the complainant and filing or presentation of the complaint must be kept in mind. In the instant case, the complaint has been made by the complainant Smt. Champa Godha though the same could have been presented by her authorised power of attorney. 12. In the facts and circumstances, there is no force in the petition under Section 482 Cr.P.C. filed on behalf of the accused. This petition is accordingly dismissed summarily. *******