S.P Sampathy And Etc. v. Smt. Manju Gupta And Another Etc.

Bilal Nazki, J.:— Eight cases have been referred to this Court by virtue of an order of reference made by learned single Judge of this Court dated 22nd November, 2001. The short point involved is whether a criminal Court can take cognizance of a complaint u/S. 138 of Negotiable Instruments Act on a complaint having been filed by a power of attorney holder of the complainant. The learned single Judge of this Court in Smt. Payyati Savitri Devi v. Malireddy Damayanthamma, 1997 (4) Crimes 325 (1997 Cri LJ 3862) relying on Madras High Court judgment in Manimekalai… v. Chapaldas Kalyanji Sanghvi…., 1995 Cri LJ 1102 has taken the view that a complaint could be filed by a general power at attorney holder also. The Madras High Court formed the opinion on the basis of Section 195 of the Code of Criminal Procedure. There is not much of discussion in the judgment of the learned single Judge of this Court (1997 Cri LJ 3862) (supra) therefore the learned single Judge before whom the present matters has come up, expressing his doubts about the views taken by the learned single Judge of this Court in the judgment (1997 Cri LJ 3862) (supra), referred the matter to the Division Bench. We have heard the learned counsel for the parties and gone through the record. We have seen the complaint as well. The complaint in these cases was not filed by the power of attorney holder. The complaint had been purported to have been made by the complainant who is the payee but it was signed by the power of attorney holder. It was argued before us that, whether it is necessary under Negotiable Instruments Act for a payee to personally file the complaint or even a holder can file the complaint who could be holder in terms of Section 8 read with Section 142 of the Negotiable Instruments Act. But, those questions do not arise in these matters because the complaint itself was shown to have been made by the payee, but it was not signed by the payee. Section 142(a) of the Negotiable Instruments Act lays down that the Court will not take cognizance of an offence punishable under Section 138 except on a complaint in writing made by the payee or the holder in due course of the cheque. Clearly the Code of Criminal procedure is not applicable. Section 5 of the Criminal procedure code lays down;

“5. Saving— Nothing contained in this code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force.” From bare perusal of Section 5 of the Criminal procedure code it is clear that the Code lays down procedure for trial of all criminal cases except under any special or local law for the time being in force or any special jurisdiction or power conferred or any special form of procedure prescibed by any other law for the time being in force. Therefore, for the purpsoe of taking cognizance, the provisions of Criminal Procedure Code have been excluded by Section 142 of N.I Act. Therefore, any reference or reliance placed on Section 198 or Chapter-XX of the Criminal Procedure Code is misplaced. The trial Court gets jurisdiction to entertain a complaint only on satisfaction of two conditions (1) that the complaint should be in writing (2) it should be made by the payee or holder in due course of the cheque. When the law demands that complaint should be in writing by the payee that means the complaint should be made and signed by the payee or the holder in due course. Admittedly, in these cases the complaint had been made in the name of the complainant but it was not signed by the complainant but signed by his power of attorney holder. Admittedly, in the present cases that has not been done. Power of attorney holder has no entity in terms of Section 142 of N.I Act. One can understand a complaint haying been made under Section, 142 by a holder in due course of the cheque but a power of attorney holder would not be a holder in due course of the cheque and he has not even been averred in the complaint that the power of attorney is holder of the cheque. He has only signed the complaint on behalf of the compainant.

2. The learned counsel for the respondents has referred to some judgments. He referred to Madras High Court judgment in Manimekalai… v. Chapaldas Kalyanji Sanghvi…. (1995 Cri LJ 1102) (supra). Since we have already held that Code of Criminal Proce are has no application as far as taking of cognizance under Section 138 of the N.I Act concerned, therefore it will not be possible for us to agree with the view of Madras high Court. The Madras High Court in the judgment did not consider the import of action 5 of the Code of Criminal Procedure, also referred to a Full Bench judgment this Court in K. Venkat Ramiah v. C. tharamiah, AIR 1961 Andh Pra 208 : (1961 Cri LJ 612). We do not feel it relevant for he purpose of this case. Similarly the judgent from Punjab and Haryana High Court Surinder Singh v. John Impex (Pvt.) Ltd., 397 (1) Civil CC 81 was referred. There was 3 special provision and the complaint in that case was in terms of the Criminal Produre Code. He also referred to a judgment Calcutta High Court in Abdul Rahim v. Mal Kumar, 1994 (2) Civil CC 60. We do to agree with the views taken for the reams given hereinabove.

3. We are of the considered view that the complaint under Section 142 can be filed ther by the payee or the holder thereof. whether the person is holder thereof is a question of fact and has to be pleaded. In he present case there is no such pleading and in fact the person who filed the comlaint had not filed the complaint on his;half, he had filed the complaint on behalf payee which is not permissible in terms “provisions of Section 142 of the N.I Act do not agree with the judgment of the unjab & Haryana High Court in Surinder singh v. John Implex (Pvt.) Ltd. (1997 (1) Civil C 81) (supra) for the same reasons.

4. For the reaons mentioned herein above hold that complaint cannot be filed by a power of attorney holder on behalf of payee under section 138 of the N.I Act. The complaint can only be filed in writing by the ayee or the holder in due course.

5. The law lid down by the learned single Judge of this court in Smt. Payati Savitri Devi v. Lalireddy Damayanthamma (1997 Cri LJ 862) (supra) is not good law. The reference accordingly answered and the matters are ferred back to the learned ‘single Judge or disposal.

6. Order accordingly.