1. Criminal Original Petitions Nos. 1225 and 1226 of 2005 are filed to call for the records in C.C No. 7527 and 7764 of 2004 respectively on the file of XVIII Metropolitan Magistrate, Saidapet and quash the same. Criminal Original Petition No. 1688 of 2005 is filed to set aside the order passed in Crl.M.P No. 284 of 2005 in C.C Nos. 7527 and 7764 of 2004 on the file of XVIII Metropolitan Magistrate, Saidapet and quash the same.

2. Petitioner is the accused in C.C Nos. 7527 and 7764 of 2004 pending on the file of XVIII Metropolitan Magistrate, Saidapet. She is alleged to have availed Rs. 91,00,000 as loan from the respondent/complainant agreeing to repay the same with interest. During the above transaction, on 25.9.2003, when the accused borrowed a sum of Rs. 75,000 on 25.9.2003, she issued three post dated cheques in repayment of the same and had also executed three promissory notes. When the three cheques were presented for collection, they were returned and dishonoured with the endorsement “Payment Stopped by the drawer”. The complainant therefore issued a notice and after receiving the same, she did not make any payment. Subsequently, the petitioner/accused had also filed a civil suit in C.S No. 787 of 2004 on the file of this Court. The petitioner is alleged to have committed an offence punishable under Section 138 of the Negotiable Instruments Act, on the basis of two private complaints initiated by respondent.

3. The point for consideration is as to whether a complaint under Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘the Act’) be filed by a Power of Attorney?

4. By going through the complaint, by reading of Section 142 of the Act and as Senior Counsel Mr. A. Natarajan submitted that by construing a strict interpretation of the above provision of law, no Court shall entertain any complaint for an offence under Section 138 of the Act except to be filed by payee or drawer of the cheque; and in that case as the complainant was the power of attorney of the payee, it was decided on 17.12.2004 in Crl.O.P No. 3975 of 2004 before the Madurai Bench that the complaint filed by the power of attorney is not maintainable in the eye of law. That was Ravi Kumar & another v. R. Ramalingam rep. by Power of Attorney, 2005(1) Crimes 423.

5. Senior Counsel Mr. Sriramulu appearing for the respondent has drawn my attention to several case laws in this aspect including interpretation of statutes and non-obstante clause contained therein and contended that the law as interpreted in Ravi Kumar & another v. R. Ramalingam rep. by Power of Attorney, 2005 (1) Crimes 423 (cited supra) is incorrect view and that the same shall have to be reconsidered in dealing with this case.

6. My attention while deciding the case at Madurai above cited, was, by then not drawn to these case laws. Before ever a different view is taken upon the order passed already, I have also gone through several aspects of the case laws cited by the learned Senior Counsel on both sides.

7. Section 2 of Powers-of-Attorney Act, 1882 runs thus:

2. Execution under power-of-attorney.— The donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power, and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.

This Section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force.

8. Mr. V. Raghavachari, learned counsel for petitioner submitted by citing following case laws:

In M. Krishnammal v. T. Balasubramania Pillai, AIR 1937 Mad. (FB) 937, it was held that vakalath though a kind of power of attorney, is confined to Pleader. Power of Attorney Agent cannot carry on business as Attorney or Solicitor. The principle involved is that act of Pleader is something personal, which could not be performed by GPA (General Power of Attorney) since knowledge in and application of law by a Pleader is purely personal with degree of variance from other Pleader too.

9. In T.C Mathai v. Dist. & Sessions Judge, Thiruvanathapuram, 1999 (1) CTC 720: AIR 1999 SCW 1062 (K.T Thomas and M.B Shah, JJ.), it was held “Power of Attorney not authorised by Court cannot become Pleader − Section 2 of Powers of Attorney Act and Sections 303 and 2 of Criminal Procedure Code”. It was so held in para 14 to 16 as follows:

“14. Section 2 of the Powers of Attorney Act cannot override the specific provision of a statute which requires that a particular act should be done by a party in person. When the Code requires the appearance of an accused in a Court it is no compliance with it if a power of attorney holder appears for him. It is a different thing that a party can be permitted to appear through counsel. Chapter XVI of the Code empowers the Magistrate to issue summons or warrant for the appearance of the accused. Section 205 of the Code empowers the Magistrate to dispense with “the personal attendance of accused, and permit him to appear by his pleader” if he sees reasons to do so. Section 273 of the Code speaks of the powers of the Court to record evidence in the presence of the pleader of the accused, in cases when personal attendance of the accused is dispensed with. But in no case can the appearance of the accused be made through a power of attorney holder. So the contention of the appellant based on the instrument of power of attorney is of no avail in this case.

15. In this context reference can be made to a decision rendered by a Full Bench of the Madras High Court in M. Krishnammal v. T. Balasubramania Pillai, AIR 1937 Mad. 937, when a person, who was the power of attorney holder of another, claimed right of audience in the High Court on behalf of his principal. A single Judge referred three questions to be considered by the Full Bench, of which the one which is relevant here was whether an agent with the power of attorney to appear and conduct judicial proceedings has the right of audience in Court. Beasley, C.J, who delivered the judgment on behalf of the Full Bench stated the legal position thus:

“An agent with a power of attorney to appear and conduct judicial proceedings, but who has not been so authorised by the High Court, has no right of audience on behalf of Principal, either in the appellate or original side of the High Court… There is no warrant whatever for putting a power of attorney given to a recognized agent to conduct proceedings in Court in the same category as a vakalat given to a legal practitioner, though latter may be described as a power of attorney which is confined only to pleaders, i.e, those who have a right to plead in Courts.”

16. The aforesaid observations, though stated sixty years ago, would represent the correct legal position even now. Be that as it may, an agent cannot become a “Pleader” for the party in criminal proceedings, unless the party secures permission from the Court to appoint him to act in such proceedings.”

10. In that case, reliance was placed upon Harishankar Rastogi v. Giridhari Sharma, AIR 1978 SC 1019, which is as follows:

“If the man who seeks to represent has poor antecedents or irresponsible behaviour or dubious character, the Court may receive counter-productive service from him. Justice may fail if a knave were to represent a party. Judges may suffer if quarrelsome, ill-informed or blackguardly or blockheadly private representatives filing arguments at the Court. Likewise the party himself may suffer if his private representative deceives him or destroys his case by mendacious or meaningless submissions and with no responsibility or respect for the Court. Other situations, settings and disqualifications may be conceived of where grant of permission for a private person to represent another may be obstructive, even destructive of justice.”

11. Same view was taken in Jimmy Jahangir Madan v. Bolly Cariyappa Hindley (Dead) By Lrs case, by 2004 (5) CTC 420: Supreme Court in a later decision 2005 Crl. L.J.112 (B.N Agarwal and K.K Sema JJ.):

“In the present case, neither heirs of the complainant filed petition under Section 302 of the Code to continue the prosecution nor any permission was sought by them from the competent court that they should be allowed to continue the prosecution through the Power of Attorney holders, rather the prayer was made by the power of attorney holders, which is not permissible under law. This being the position, we are of the view that the trial Court was not justified in allowing the petition under Section 302 of the Code and the High Court has committed an error in confirming the said order which is liable to be set aside and petitions under Section 302 of the Code are fit to be dismissed giving liberty to the heirs ether to make application themselves before the Court concerned to continue the prosecution or apply to the Court to grant permission to them to authorise the power of attorney holders to continue the prosecution on their behalf”.

From the above decisions, it can be seen as to what is Power of Attorney and when and how can represent the parties in a proceedings before Court.

12. Now, let us go through the divergent views expressed by various High Courts about GPA in connection with Section 142 of Negotiable Instrument Act, which reads as follows:

“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;

13. Reliance was placed upon the following judgments of single Judge of Andhra Pradesh and Madhya Pradesh.

(i) RBF Nidhi Ltd. and another v. State of A.P, 2003 (1) ALD (Crl.) 152 (A.P), (S.R.K Prasad, J.)

(ii) Ujwal Textiles and another v. V.N Commercial Corporation & another, 2004 (2) Bankmann 380 (A.P), (S.R.K Prasad, J.)

(iii) Ramesh v. Ganeshchandra & Others, 2004 (2) Bankmann 464 (M.P), (S.L Kochar, J.)

14. It was held in Ramesh case (supra) that in view of the provisions of Powers of Attorney Act, the complaint can be presented by the holder of Power of Attorney, but for the purpose of further prosecution, the presence of complainant is essential and if he appears and gives statement before the Court, then there is no defect in filing the complaint.

15. In Ujwal Textiles case (supra), reference was made to

i) Ruby Leather Exports v. K. Venu (M/S), 1994 (1) Crimes 820 (Mad.), Justice Arunachalam.

ii) Rajan George v. State of Kerala, 1999 (1) Crimes 519 (Kerala), Justice P.V Narayanan Nambiar, J.

iii) S.P Sampathy v. Manju Gupta, 2002 (1) ALT (Crl.) 497, Justice Bilai Nazki.

16. In S.P Sampathy's case (cited supra), it was held that the complaint has to be filed in the name of payee and only he has to sign it and it cannot be signed by GPA holder, who cannot be a holder in due course.

17. In Rajan George's case, it was held that personal presence of the complainant is not mandatory and that complaint can be filed by his Advocate or Power of Attorney.

18. In Ruby Leather Exports case, it was held that a Power of Attorney Agent of the payee or the holder in due course of the cheque, will be competent to make a complaint in writing under Section 142(a) of the Act, to facilitate valid cognizance being taken by the Magistrate.

19. In Hamsa v. Ibrahim, 1994 (1) Crimes 395 (Kerala) case, it has been held by Justice K.T Thomas as follows:

“According to the law of England “every person who is sui juris has a right to appoint an agent for any purpose whatever and that he can do so when he is exercising a statutory right no less than when he is exercising any other right”. This was recognized as a common law, when a person authorises another to sign for him, the signature of the person so signing is the signature of the person authorizing it. Thus, the law is well settled that whatever a person can do himself, he can do through an agent.”

20. In Revulu Subba Rao v. I.T Commr., AIR 1956 SC 604, it was observed that there is an exception to the common law that when a person authorises another to sign for him, the signature of the person so signing is the signature of the person authorising it. The said rule is subject to certain well known exceptions such as, when the act to be performed is personal in character, when the act to be performed is annexed to a public officer or to an office involving any fiduciary obligation. Apart from the said exception, the law is well settled that whatever a person can do himself, he can do through an agent. At this moment, it is pertinent to mention that this is also the view taken on 27.12.2004 by a Full Bench of High Court of Andhra Pradesh in a case Ramachandra Rao, K. v. State of Andhra Pradesh, 2005 (2) CTC 417, which is as follows:

“In Ram Chandra case (supra) it is clearly held that complaint filed through the power of attorney of a person aggrieved, tantamounts to filing of the complaint by the person aggrieved. For that reason, and since the right accrued to the payee or the holder in due course of a dishonoured cheque does not fall within the three exceptions to the rule Iqui facit per alium facit per se recognised by Section 183 of the Contract Act i.e, since the act to be performed — (i) is not personal in its character, or (ii) is not annexed to any public office, and (iii) does not involve any fiduciary obligations, we hold that the power of attorney of a payee or a holder in due course of a dishonoured cheque can file a complaint for an offence under Section 138 of the Act after obtaining permission from the Court, either before or after filing of the complaint. The reference is answered accordingly”.

21. However, by citing all these judgments excepting 2005(2) CTC 417, (27.12.2004), the Andhra Pradesh High Court in 2004 (2) Bankmann 380, Ujwal Textiles case, preferred to follow the principles laid down in S.P Sampathy case, (DB-Andhra) 2002 (1) ALT (Crl.) 497 and held that there is lacuna in the Act that the non-mention of words ‘power of attorney holder or agent or payee’ for presenting the complaint clearly goes to show that the legislature did not contemplate of presentation of such complaints. Moreover, due to non obstante cluase in the N.I Act, the interpretation to Section 2(d) of Cr.P.C cannot be extended to that Act.

22. Now, let us go into S.P Sampathy's case, itself 2002 Cri.L.J.2621, which was followed by S.R.K Prasad, J. in Ujwal Textiles case, 2004 (2) Bankmann 380 (AP). Sampathy's case, is a Division Bench case overruling the judgment of single Judge of Andhra Pradesh in Smt. Payyati Savitri Devi v. Malireddy Damayanthamma, 1997 Cri.L.J 3862, which was made relying on the judgment of Madras High Court in Manimekalai… v. Chapaldas Kalyanji Sanghvi…., 1995 Cri.L.J 1102. Therefore, reference was made to Division Bench.

23. In Sampathy's case (cited supra), it has been held that Power of Attorney holder has no entity in terms of Section 142 of N.I Act. It was observed that one can understand a complaint having 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 the holder of the cheque. Sampathy case while referring the judgment in Payyati Savitri case, (AP) (cited supra), which relied on Manimekalai case. (Mad.) (cited supra) distinguished the fact by contending that the judgment in those two cases did not consider the import of Section 5 of Cr.P.C So, it was pointed out in Sampathy's case, that Section 142 of N.I Act excludes for the purpose of taking cognizance provisions of Cr.P.C including Section 5, Cr.P.C, which is as follows:

“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.”

Thus, Code lays down procedure for trial of all criminal cases except under any special or local law and Section 142 of N.I Act also excludes application of Cr.P.C It is on this principle, the Division Bench in Sampathy's case and Ujwal Textiles case (cited supra) took a view that GPA is not holder in due course and cannot file complaint. It is to be mentioned here that why a different view was taken in Surinder Singh v. John Impex (Pvt.) Ltd., 1997 (1) Civil CC 81, was because there was no special law involved and the complaint in that case was only in terms of Cr.P.C

24. Justice S.R.K Prasad, before writing Ujwal Textiles case, 2004 (2) Bankmann 380 on 10.6.2003, wrote another judgment on 11.11.2002 RBF Nidhi Ltd. and another v. State of A.P and others, 2003 (1) ALD (Crl.) 152 (AP), wherein he has laid down certain guidelines which are as follows:

(a) Whenever GPA holder presents a complaint before the Court, the Magistrate shall insist upon the signature of the payee on the complaint, and he shall record sworn statement of not only the payee, GPA holder and endeavour shall also be made to record the sworn statement of de facto complainant, at whose instance provisions of Section 142 of N.I Act are invoked.

(b) … … …

(c) … … …

(d) The Magistrate shall insist on filing of GPA into Court and also insist on filing an affidavit to be presented in lieu of proof of execution of the said GPA.

(e) The Magistrate shall thoroughly examine the statement of GPA holder as well as the original complainant and documents produced before him and exercise his discretion vested under Sections 200 to 203 of Cr.P.C

(f) The above guidelines are not exhaustive. There may be some cases which are not covered by the above guidelines. In such cases, the Magistrate shall exercise his judicial discretion and proceed to deal with the cases arising under Section 200, Cr.P.C

25. There is yet another Madya Pradesh case Ramesh v. Ganeshchandra and others, 2004 (2) Bankmann 464. In this Judgment, Justice S.L Kochar has relied upon three cases.

1) Sampathy case (cited supra);

2) Dr. Anil Kumar and another v. Sant Prakash Gupta, 2001 Crl.L.J 3632; and

3) M/s. MMTC Ltd. and another v. M/s. Medchl Chemicals and Pharma (P) Ltd., 2001 (4) CTC 749: AIR 2002 SC 182.

26. In MMTC's case (cited supra), the Supreme Court held that though the complaint was filed on behalf of the Company who was the holder of the cheque by unauthorised person, but the same defect is curable and on this account, the complaint cannot be quashed. In the same MMTC case, though the complaint was filed by holder of power of attorney on behalf of the complainant, later on this defect has been cured. The complainant himself has appeared and signed on the complaint. This was done in pursuance of the revisional order passed by the lower Revisional Court. Thus, it was held in the above cited MMTC (Supreme Court) case that it is a curable defect and the complainant can later on sign the complaint whereby it becomes clear that complainant should sign the complaint. Therefore, it was held in Ramesh case (cited supra) as follows:

“…….in view of the provisions of Powers of Attorney Act, the complaint can be presented by the holder of power of attorney, but for the purpose of further prosecution, the presence of complainant is essential and if he appears and gives statement before the Court, then there is no defect in filing the complaint.”

27. The same view was taken by the Division Bench of the Supreme Court in Vishwa Mitter v. O.P Poddar by D.A Desai and Amarendranath Sen, JJ., 1983 (4) SCC 701, wherein it has been held as follows:

“It is thus crystal 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 under Section 190 and unless any statutory provision prescribes any special qualification or eligibility criteria for putting the criminal law in motion, no Court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. Section 190 of the Code of Criminal Procedure clearly indicates that the qualification of the complainant to file a complaint is not relevant. But where any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute.”

28. The eligibility criteria under Section 142, N.I Act is the appearance of and deposing by complainant. When this is done on a future date, then the filing of complaint by GPA, on behalf of payee or holder in due course is only a permissible ritual, based on the fact that GPA comes to shoes of complainant. But, to depose for payee or holder in due course, GPA is incompetent, as per views expressed in several case laws.

29. Thus, on a combined reading of Vishwa Mitter case, 1983 (4) SCC 701 and S. Ramasam Aiyengar case, 1922 (XVI) L.W 220, it is found that examination of complainant is a must. Therefore, S.L Kochar, J. in Ramesh case (Madhya Pradesh) 2004 (2) Bankmann 464, held that the presence of complainant is essential and if he appears and gives statement before Court, then there is no defect in filing the complaint by GPA and the same shall be treated as cured.

30. That is why the Division Bench of the Andhra Pradesh High Court in RBF Nidhi Ltd. case, 2003 (1) ALD (Crl.) 152 (AP) gives one guideline which is as follows:

“Whenever GPA holder presents a complaint before the Court, the Magistrate shall insist upon the signature of the payee on the complaint, and he shall record sworn statement of not only the payee, GPA holder and endeavour shall also be made to record the sworn statement of de facto complainant, at whose instance provisions of Section 142 of N.I Act are invoked.”

31. In order to justify this position, I may have to go to the incompetence of GPA to depose on behalf of complainant. In Ram Prasad v. Hari Narain case, AIR 1988 Raj. 185, it was held that the word ‘acts’ used in Rule 2 of Order 3, C.P.C does not include the act of power of attorney holder to appear as a witness on behalf of a party. In a case law Shambhu Dutt Shastri v. State of Rajasthan, 1986 (2) WLN 713, referred in Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 3 CTC 128: 2004 AIR SCW 7064, it was held,

“A general power of attorney holder can appear, plead and act on behalf of the party, but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness-box on behalf of himself. To appear in a witness-box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.”

32. That is how it was held in (D.M Dharmadhikari and H.K Sema, JJ.) Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 3 CTC 128: 2004 AIR SCW 7064 (Bombay DB), that power of attorney holder cannot depose in respect of principal (Order 3, Rules 1 & 2, C.P.C). Even in the case of law of Dr. Pradeep Mohanbay (Dr.)… v. Minguel Carlos Dias (Mr.)…., (a Goa Bench of Bombay High Court) 2000 Vol. 102 (1) Bom. L.R 908, it was held that GPA can file a complaint under Section 138, but cannot depose on behalf of the complainant. He can only appear as a witness.

33. It was found in Janki Vashdeo Bhojwani case, (2005) 3 CTC 128: 2004 AIR SCW 7064, that the principle laid down in Shambhu Dutt Shastri case, AIR 1998 Raj. 185, is the correct view and which is as follows:

“GPA can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A GPA cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.

34. Thus, in Sampathy's case, it was held that the complaint should be made only in the name of Payee and that he himself is to sign, which was partly followed in MMTC's case. The guidelines in Ujwal Textiles case, is that payee is to sign the complaint; that there should be sworn statement taken by both the GPA as well as payee, etc. Thus, the above three cases are alike in their judgments. But in Vishwa Mitter case, the Supreme Court has directed the eligibility criteria under Section 142, by contending that according to Section 190, Cr.P.C, the qualification of the complainant to file a complaint is irrelevant. Similarly in Ramesh case, 2004 (2) Bankmann 464 (M.P) and Ramesam Iyengar case, 1922 (XVI − 16) L.W 220, it was held that Court can receive the complaint and insist upon the presence of the complainant and his statement at a later point of time. The principle involved is that GPA can file complaint on behalf of payee and he is incompetent to depose on behalf of payee.

35. Mr. B. Sriramulu, learned counsel for the respondent has catalogued several case laws in support of his contention. I may deal with some cases now.

I Hamsa v. Ibrahim, 1994 BC 314, K.T Thomas, J.

In that case, arguments was advanced that absence of such words in the statute so as to enable the power of attorney to be a complainant is sufficient indication that legislature did not intend so. It is in support of the contention, Sections 198 and 199 of Cr.P.C were cited. As per those provisions, a Court is debarred from taking cognizance of certain offences except upon a complaint made by some person aggrieved by the offence concerned. However, special provisions was made in both Sections enabling another person to file complaint on behalf of such aggrieved person: whereas Section 142 of the N.I Act does not contain similar provisions as found in Section 199, Cr.P.C It is in this circumstance, K.T Thomas, J. in the above cited case held that,

“no inference can be drawn that Parliament never intended to allow the complaint to be filed through an agent or power-of-attorney holder of a payee or holder in due course.”

It was also observed that,

“according to the Law of England, every person who is sui juris has a right to appoint an agent for any purpose whatever, and that he can do so when he is exercising a statutory right no less than when he is exercising any other right…………..Blackburn, J. has stated in Queen v. Justices of Kent, 1873 (8) Q.B.305, that ‘at common law, when a person authorises another to sign for him, the signature of the person so signing is the signature of the person authorising it’.”

36. Acknowledging the above principle, Supreme Court in Ravulu Subbarao v. IT. Commr., 1956 SC 604, observed that

“the said rule is subject to certain well known exceptions such as, when the act to be performed is personal in character, or when the act to be performed is annexed to a public office, or to an office involving any fiduciary obligation. Thus, subject to such exception, the law is well settled that whatever a person can do himself, he can do through an agent.

…. … …

Making a complaint before a Court is not an act which would fall within the exceptions envisaged by Venkatarama Ayyar, J. in Ravulu Subba Rao v. I.T Commr., 1956 SC 604”.

37. The argument that Section 2 of Powers of Attorney Act cannot override the specific provision of the rule made under a different statute was considered in Ravulu Subba Rao case. But, according to K.T Thomas, J. (in the judgment rendered in I (1994) BC 314, as was put in the above cited case law, the principle enunciated in the said decision Ravulu Subba Rao case, has no application to Section 142 of N.I Act since there is no requirement in it that the complaint should be made by the payee or holder in due course “personally”. Thus, if only statute requires that a particular act should be done by someone personally, then alone Section 2 of Powers of Attorney Act, cannot override the specific provision of a rule made in N.I Act. Therefore, it was held in the above cited case 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 or the holder in due course (as the case may be) ‘personally’.” So long as it is not a personal act to be done according to the N.I Act, then it would not fall into the exceptions to the well settled law that whatever a person can do himself, he can do through an agent. It is on this reasoning, as a result it was held that a power of attorney holder of a payee or a holder in due course can make a complaint under Section 142 of the N.I Act.

38. Coming to decisions of Madras High Court, as early as on 20.4.1992, this question was dealt with in a case law M/s. Gopalakrishna Trading Co., rep. by its Mgr. P. Sivaram v. D. Baskaran, 1992 (3) Crimes 1094, and the question that arose for consideration as to what is the procedure to be followed in the case of preference or lodging of a complaint by the company as defined under the Act. It was held by Janarthanam, J. that the complaint having been given by M/s. Gopalakrishna Trading Company represented by its Manager, it cannot be stated that the complaint had been preferred by any other person other than the Company, which is the payee and which is entitled to prosecute the drawer for committing the alleged refraction or violation of provisions of Section 138 of N.I Act.

39. The same view was taken by Justice Ramakrishnan in Kerala High Court in C.B.S Gramaphone Records and Tapes (India) Ltd. v. Noorudeen, 1992 (II) MWN (Crl.) 160. In that case, the Company C.B.S Gramaphone Records and Tapes (India) Ltd. was the complainant and N.K Krishnan was only a representative of the Company. The payee of the cheque and complainant were the same. What had been lost sight of by the Magistrate in that case was that Krishnan was not the complainant, but he was only representing the Company which was the payee of the cheque. It was held that so long as the complainant is the payee or the holder in due course, a power of attorney agent will not be prohibited from initiating and pursing a complaint for an offence punishable under Section 138 of N.I Act.

40. Then, coming to Ruby Leather Exports v. K. Venu (M/S), 1994 (1) L.W(Crl.) 34, (Arunachalam, J.) wherein the subject matter was dealt with in detail. It was held as follows:

“The eligibility criteria under the Negotiable Instruments Act does not get disturbed, if a GPA duly constituted initiates private complaints, for, as I have stated earlier, the Power of Attorney Agent, steps into the shoes of the payee or the holder in due course of the cheque.

…. … …

Once a GPA makes the complaint, for all practical purposes, it is the payee or the holder in due course of the cheque, who is the complainant. The words ‘in writing’ mentioned in Section 142(a) of N.I Act, to my mind, cannot be restricted to mean that it must be in writing by the payee himself or the holder in due course himself for, if it is made by the GPA, it tantamounts to the complaint being made by the payee or as the case may be the holder in due course of the cheque. As rightly pointed out by one of the counsel, the words ‘in writing’ appear to have been introduced under Section 142(a) of N.I Act, contra Section 2(d) of the Cr.P.C which postulates an oral complaint as well.”

Thus, according to the general law, there is no locus standi for setting the criminal law in motion as was held by K.T Thomas, J. in Hamsa's case, I 1994 BC 314. Since N.I Act does not require the act to be done by holder in due course or payee, Section 2 of Powers of Attorney Act can override the rule made in N.I Act and that therefore, GPA can file a complaint; it is not as though, total strangers, not contemplated under Section 142(a) of N.I Act had initiated complaints. Thus, general law is that there is no specific locus standi for setting the criminal law in motion for act viz., N.I Act provides that a complaint should be in writing by payee or holder in due course. But, in so long as that act is not personal act by payee and holder in due course according to principle laid down by K.T Thomas, J. in Hamsa's case, Section 2 of Powers of Attorney Act can override N.I Act. Therefore, GPA can file.

41. Similar view was taken in Vishwa Mitter case, 1983 (4) SCC 701 (cited supra) that eligibility criteria provided in special enactment, if filed by complainant, then there is end of the matter. Although Ruby Leather Exports case did not directly deal with the issue, as to whether person authorised in writing as payee would suffice, there was mention in para 23 of that judgment, that GPA will come to the shoes of the payee or holder in due course of the cheque and that they are not total strangers not contemplated under Section 142(a) of N.I Act.

42. In Madras High Court Justice M. Karpagavinayagam has approved this view in the following three case law wherein judgments were pronounced (i) on 6.8.1997 Mahendra Jain v. C.K. Mohammed Ali, 1997 (2) L.W (Crl.) 637-B., (ii) on 12.4.2001 A. Krishnan Prop. v. S.P. Kumar, 2001 (3) CTC 301 and (iii) on 25.1.2002 Y. Sreelatha @ Roja v. Mukanchand Bothra.

43. In the Mahendra Jain case, 1997 (2) L.W (Crl.) 637, the decision of Supreme Court in Ramachandra v. State Bihar, AIR 1967 SC 349, was contemplated. According to that decision of the Supreme Court, the power of attorney agent duly constituted could act on behalf of a person aggrieved. Based upon that proposition, it was held in the above cited case by M. Karpagavinayagam, J., as follows:

“It is no doubt true, the wordings contained in Section 142(a) would provide eligibility criteria to the effect that the complaint should be made only by certain categories of persons. But, this eligibility does not get affected, if a power agent initiates a private complaint on behalf of those categories of persons as contemplated under Section 142(a) because the basic concept of power of attorney agent as interpreted in various decisions is that the power of attorney agent would step into the shoes of those categories of persons…… …. …

Therefore, in my view, the power of attorney agent of the payee or a holder in due course of the cheque, who is an individual will be competent to make a complaint in writing under Section 142(a) of the Negotiable Instruments Act to facilitate the valid cognizance being taken by the Magistrate.”

44. In Krishnan's case, 2001 (3) CTC 301 (cited supra), payee is the Company in whose name the instrument was drawn but the complaint was filed by one S.P Kumar, Manager as power of agent for the company. It was contended that the complaint was not valid because Section 142 of N.I Act permits only the payee or the holder in due course to be the complainant. Disagreeing with the view taken by Andhra Pradesh High Court in M/s Satish & Co. v. M/s. S.K Traders, 1998 Crl.L.J.419 and agreeing with the view taken in M/s Gopalakrishna Trading Co. v. D. Baskaran, 1992 (1) MWN (Crl.) 236: 1992 (3) Crimes 1094, it was held that complaint presented by the Manager representing the Company is valid in law.

45. In Y. Sreelatha @ Roja's case, 2002 (2) Crimes 19 (cited supra) also, this view was confirmed in the following words:

“There is no law which prohibits filing of complaint through power of attorney either on behalf of the individual or on behalf of the Company. Only when the validity of the power of attorney is questioned, the Court could be called upon to decide the genuineness or the validity of the power of attorney.

In this case, it is noticed that the complaint was taken on the file on the basis of the sworn statement given by one Bhoopathy who is the power of attorney holder. Thereafter, when the trial commenced, the complainant himself was ready to depose his evidence.

…. … …

Accordingly, the complainant, who is the payee and in whose favour the cheques in question were drawn was examined as P.W.1 in chief and cross.

When such being the case, it cannot be contended that the power of attorney holder should not have been allowed to file the complaint.”

Thus, the only view taken was that the complainant should be examined.

46. In Calcutta High Court, in the judgment Smt. Sova Mukherjee… v. Rajiv Mehra…., II (1996) BC 382, the cheque issued by the power of attorney is construed that the cheque issued by the complainant himself.

47. In Punjab & Haryana High Court, in Surinder Singh v. John Impex (P) Ltd., I (1997) BC 247, it was held that a power of attorney agent of the payee or the holder in due course is competent to make a complaint in writing under Section 138 of the N.I Act to facilitate valid cognizance being taken by the Magistrate.

48. In Gujarat High Court, in Anil G. Shahj v. I.J Chittranjan Co., 1998 Crl.L.J.3870, the observations made by K.T Thomas, J. In Hamsa's case, I (1994) BC 314, mentioned supra was relied on. Reliance was also placed on Punna Devi v. John Impex (Pvt.) Ltd. case, 1996 (2) Banking Commercial Law Reporter, 482, wherein it was held that the eligibility criteria under the N.I Act does not get disturbed, if a power of attorney holder duly constituted initiates private complaint, for the power of attorney agent steps into the shoes of the payee or the holder in due course. In fact, this was relied on by Justice Arunachalam in Ruby Leather Exports case, 1994 (1) L.W (Crl.) 34.

49. Reliance was also placed on the case of Sk. Abdur Rahim… v. Amal Kumar Banerjee & Ors.…Opposite Parties., 1996 Cri.L.J 555, wherein it was held that Section 142 of N.I Act does not lay down that the complaint must be filed by the payee personally. When Sec. 142 does not specifically say that complaint must be lodged by the complainant personally, then Section 2 of the Power of Attorney Act will override the provisions of N.I Act as was mentioned by Justice K.T Thomas. Reliance was also placed on Vishwa Mitter's case, 1983 (4) SCC 701, in the above case of Anil G. Shah's case, 1998 Crl.L.J.3870

50. In Bombay High court, there are two cases:

i) Suresh Srinivasan Iyengar v. State of Maharashtra & Others, 1998 DCR 346.

ii) Dr. Pradeep Mohanbay v. Mr. Minguel Carlos Dias, 2000 Vol.102 (1) Bom.L.R.908

Suresh Srinivasan Iyengar's case, 1998 DCR 346, followed the view of Justice Janarthanam expressed in M/s Gopalakrishna Trading Co., rep. by its Manager P. Sivaram v. D. Baskaran (supra) and Justice Ramakrishnan of Kerala High Court in C.B.S Gramophone Records and Tapes (India) Ltd. v. Norrudeen (supra).

51. In Dr. Pradeep Mohanbay's case, 2000 Vol.102 (1) Bom.L.R.908, (Judgment dated 1.10.1999), the case laws in Hamsa v. Ibrahim, 1994 (I) Crimes 395; Ravul subba Rao and Ors. v. Commr. of Income-Tax. Madras, AIR 1956 SC 604; and Suresh Srinivasan Iyengar v. State of Maharashtra & Ors., 1999 (I) Crimes 161, etc. were dealt with and found that GPA can be permitted to file a complaint.

52. In Madhya Pradesh High Court in Dr. Anil Kumar Haritwal v. Sant Prakash Gupta Case, 2001 Crl.L.J 3632, reliance was placed on Anil G. Shah's case, 1998 (2) BC 108: 1998 Cri.L.J 3870, Hamsa v. Ibrahim, 1994 (1) Banking Cases 314 and Associated Cement Co,. Ltd. v. Keshav Chand, AIR 1998 SC 596: 1998 Cri. L.J 856. It was held that GPA can file a complaint or holder in due course.

53. In Karnataka High Court, in K.M Maregowda… v. M/S. Seven Hills Ex-Import Corporation, Bangalore…., Bangalore, 2004 Crl.L.J 4119, reliance was placed upon MMTC Ltd. v. Medchl Chemicals case, AIR 2002 SC 182; S.P Sampathy case, 2002 Cri.L.J 2621; Anil Kumar case, 2001 Cri.L.J 3632 (MP); and Associated Cement Co. Ltd. Case, 1998 Cri.L.J 856. It was held in that Andhra Pradesh (DB) judgment Sampathy case, 2002 Cri.L.J 2621, to the effect that GPA holder has no entity in terms of Section 142 of N.I Act, is no more good law.

54. In MMTC case, AIR 2002 SC 182, the principle is when a complaint is in the name of the Firm and not in the name of power of attorney holder, showing power of attorney as a complainant, such complaint could be held as proper i.e, GPA could represent complainant and present complaint on behalf of the complainant. Then, in that case, examining power of attorney holder is sufficient compliance of Section 200, Cr.P.C Though Section 200, Cr.P.C envisages examination of complaint on oath, it would be proper to bear in mind the following observation made in the case of State of Punjab v. Shamlal Murari, AIR 1976 SC 1177, reiterated by the Supreme Court recently in the case of Rosy v. State of Kerala, AIR 2000 SC 637 that,

“We must always remember that procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaids and not the mistresses, a lubricant, not a resistant in the administration of justice.

Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied with in time or in extended time…. Even otherwise, at the most, non-examination of complainant and examination of power of attorney holder of complainant in such a case would be an irregularity and not an illegality, which does not vitiate the proceedings, particularly as such a procedure cannot be said to have prejudiced the petitioner accused in any way”.

55. Thus, from the above discussion it is made clear that complaint can be presented by GPA on behalf of the payee, provided,

(i) the complaint shall be signed by the payee himself;

(ii) there shall be also an affidavit of the complainant in proof of his execution of GPA; added to the production of the said Power of Attorney document;

(iii) sworn statement of GPA can be recorded on the date of presentation of the complaint;

(iv) sworn statement of payee (complainant) shall have to be taken in a future date on his appearance in Court; the Magistrate shall thoroughly examine the statements of GPA holder as well as the original complaint and documents produced before him and exercise his discretion vested under Sections 202 and 203 of Cr. P.C

The above guidelines are not exhaustive and in other circumstances the Magistrate shall exercise his discretion judiciously and in conformity of other provisions of law applicable.

56. For the reasons mentioned above, Criminal Original Petition Nos. 1225 and 1226 of 2005 are ordered accordingly. In view of the circumstances of the case, the trial Court will consider favourably petition under Section 317, Cr.P.C, whenever petitioner could not appear in person, excepting for purpose of questioning that may arise. So, Crl.O.P No. 1668 of 2005 is also ordered accordingly. Consequently, connected criminal miscellaneous petitions are closed.

ALS/RSN