Citation Codes

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Case Number

Crl. O.P Nos. 1354 to 1357 of 2002 and Crl. M.P Nos. 680 to 683 of 2002

Advocates

Mr. N. Pappiah, Advocate for Petitioner.
No. Representation for Respondent.

Judges

M. Jeyapaul, J.

Acts

Sections 202 and 203 of the Code of Criminal Procedure.9.
SECTION 142 NEGOTIABLE INSTRUMENTS ACT 1881
SECTION 138 NEGOTIABLE INSTRUMENTS ACT

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Smart Summary

Structured Summary of the Opinion — Crl.O.P. Nos. 1354–1357 of 2002

Factual and Procedural Background

Four Criminal Original Petitions (Crl.O.P. Nos. 1354, 1355, 1356 and 1357 of 2002) were filed challenging related cases registered as C.C. Nos. 7611/1998, 7607/1998, 7608/1998 and 7610/1998 respectively before the II Metropolitan Magistrate, Egmore.

The petitioner in these petitions is the accused in all the aforementioned cases. Each case concerns alleged offences under Section 138 of the Negotiable Instruments Act. The complainants (payees) in the respective complaints are:

G. Raghaven (Crl.O.P. No. 1354 of 2002),
G. Venkatesan (Crl.O.P. No. 1355 of 2002),
G. Vijayakumar (Crl.O.P. No. 1356 of 2002), and
Tmt. G. Ramani (Crl.O.P. No. 1357 of 2002).

Each of those payees filed their complaint through a power of attorney agent, K. Gopalakrishnan.

Relevant procedural facts noted in the opinion:

The payees had not personally signed the complaints.
The payees had not filed affidavits in proof of execution of their power of attorney.
The sworn statement of the power of attorney agent was not recorded on the date of presentation of the complaints.
There was no representation for the respondents at the hearing of these petitions.

Legal Issues Presented

Whether a complaint under Section 138 of the Negotiable Instruments Act can be validly filed by the payee's power of attorney holder (i.e., whether the power of attorney agent is competent to sign and lodge the complaint on behalf of the payee).
Whether the complaint must be signed by the payee personally and whether an affidavit by the payee proving execution of the power of attorney is necessary.
Whether the sworn statement of the power of attorney agent can be recorded at the time of presentation of the complaint or must be deferred.
What procedural scrutiny the Magistrate must undertake (including examination of agent and principal) before exercising discretion under Sections 202 and 203 of the Code of Criminal Procedure (as discussed in the cited authorities).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Y. Vijayalakshmi @ Rambha v. Manickam Narayanan, Proprietor, Seventh Channel Communications (Thanigaivelan, Power of Attorney Agent), 2005 (3) CTC 480 (S.R. Singharavelu, J.)	Held that: (a) the complaint under Section 138 NI Act shall be signed by the complainant personally; (b) an affidavit of the complainant in proof of execution of power of attorney shall be filed; (c) sworn statement of power of attorney agent can be recorded on date of presentation; (d) sworn statement of payee to be taken on his later appearance; (e) Magistrate must thoroughly examine agent and principal and documents before exercising discretion under Sections 202 and 203 Cr.P.C.	The Court respectfully disagreed with this view to the extent that it requires the complainant to sign personally and to require an affidavit proving execution of the power of attorney; the present Court found Section 142 NI Act does not mandate personal filing by the payee and treated the affidavit requirement as redundant where the deed of power of attorney is produced.
Ruby Leather Exports v. K. Venu (M/S), 1994 (1) L.W. (Cri.) 34 (T.S. Arunachalam, J.)	Held that the power of attorney agent is virtually the payee himself or the holder in due course; filing by the power of attorney agent is valid.	The Court cited this authority as supportive of the proposition that a power of attorney agent can validly file the complaint under Section 138 NI Act.
Mahendra Jain v. C.K. Mohammed Ali, 1997 (2) L.W. (Cri.) 637 (M. Karpagavinayagam, J.)	Held that a power of attorney holder of the payee is competent to make the complaint in writing; "in writing" does not mean it must be by the payee personally; cognizance on basis of sworn statement of POA holder is valid; Section 142(a) does not exclude complaint by POA agent.	The Court relied on this authority to support the competency of the POA holder to file the complaint and to justify taking cognizance on the basis of the agent's sworn statement.
Y. Sreelatha @ Roja v. Mukanchand Bothra, 2002 (1) CTC 530; 2002 (2) Crimes 19 (M. Karpagavinayagam, J.)	Similar holding to Mahendra Jain: power of attorney holder competent to initiate complaint; Section 142(a) does not prohibit complaints by POA agent.	The Court treated this authority as further support for allowing POA holders to initiate complaints under Section 138.
Ramachandra Rao, K. v. State of A.P., 2005 (2) CTC 417 (Full Bench, Andhra Pradesh High Court)	Held that since Section 142 NI Act does not specifically require the payee or holder in due course to personally file the complaint, the power of attorney agent can legally lodge criminal proceedings under Section 138 NI Act.	The Court cited and followed this Full Bench decision to reinforce the view that the POA agent is competent to lodge complaints under Section 138; this authority influenced the Court's final conclusion.

Court's Reasoning and Analysis

The Court began by surveying the authorities on whether a power of attorney holder may file a complaint under Section 138 of the Negotiable Instruments Act and the attendant procedural formalities.

Key elements of the Court's reasoning as stated in the opinion:

The Court observed conflicting views in earlier decisions. One line of authority (e.g., Y. Vijayalakshmi) required the complainant to sign personally and to file an affidavit proving execution of the power of attorney, and recommended certain procedures for recording sworn statements and for magistrates to examine agent and principal before exercising powers under Sections 202 and 203 Cr.P.C.
The Court disagreed with the requirement that the complainant must personally sign the complaint. It held that Section 142 of the Negotiable Instruments Act does not specifically mandate that the payee or holder-in-due-course must lodge the complaint themselves.
The Court accepted the proposition advanced in other authorities (including Ruby Leather Exports; Mahendra Jain; Y. Sreelatha; and the Full Bench in Ramachandra Rao) that a power of attorney holder who has authority to sign and act on behalf of the principal can validly lodge a complaint under Section 138.
The Court considered the affidavit requirement (an affidavit by the complainant proving execution of the power of attorney) to be unnecessary where the deed of power of attorney itself is produced at the time the complaint is filed; thus, filing such an affidavit was characterized as "totally redundant" in the present circumstances.
As to recording sworn statements, the Court held that the sworn statement of the power of attorney can be recorded at the inception (i.e., at the time of presentation). The actual testimony of the payee (principal) can be taken later during the course of the trial, when the payee must testify about cheque issuance, presentation, dishonour, statutory notice, and related matters.
Applying these principles to the facts before it, the Court found that the power of attorney holder had signed the complaints and filed them together with the power of attorney deed. There was no finding of abuse of process of court.
Accordingly, the Court concluded that there was no basis to quash the criminal proceedings initiated by the power of attorney holder on behalf of the payees.

Holding and Implications

Core Ruling: The criminal original petitions Nos. 1354 to 1357 of 2002 are dismissed.

Consequential disposition explicitly stated in the opinion:

The connected criminal miscellaneous petitions are also dismissed.

Direct implications for the parties (as stated in the opinion):

The complaints filed by the power of attorney holder on behalf of the payees are not quashed and the criminal proceedings initiated in the magistrate's court may continue.

The opinion does not articulate broader legal consequences beyond the direct effect on these petitions; it therefore does not purport to lay down a novel precedent beyond applying and preferring the cited authorities that permit complaints by power of attorney holders.

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T. Muthukaruppan Petitioner v. G. Raghavan, Rep. By His Power Of Attorney, K. Gopalakrishnan And Others S

1. Crl.O.P No. 1354 of 2002 is filed against C.C No. 7611 of 1998 on the file of the learned II Metropolitan Magistrate, Egmore.

2. Crl.O.P No. 1355 of 2002 is filed against C.C No 7607 of 1998 on the file of the learned II Metropolitan Magistrate, Egmore.

3. Crl.O.P No. 1356 of 2002 is filed against C.C No 7608 of 1998 on the file of the learned II Metropolitan Magistrate, Egmore.

4. Crl.O.P No. 1356 of 2002 is filed against C.C No 7610 of 1998 on the file of the learned II Metropolitan Magistrate, Egmore.

5. The petitioner is the accused in all the aforesaid case launched against him for the offences under Section 138 of the Negotiable Instruments Act. The payee G. Raghaven in Crl.O.P No. 1354 of 2002, the payee G. Venkatesan in Crl.O.P No. 1355 of 2002, the payee G. Vijayakumar in Crl.O.P No. 1356 of 2002 and the payee Tmt. G. Ramani in Crl.O.P No. 1357 of 2002 have filed a complaint through their power of attorney, K. Gopalakrishnan.

6. The payee G. Raghaven in Crl.O.P No. 1354 of 2002, the payee G. Venkatesan in Crl.O.P No. 1355 of 2002. the payee G. Vijayakumar in Crl.O.P No. 1356 of 2002 and the payee Tmt. G. Ramani in Crl.O.P No. 1357 of 2002 had not signed the complaint nor had they filed any affidavit in proof of execution of their power of attorney. Further the sworn statement of the power of attorney agent was not recorded on the date of presentation of the complaint.

7. There was no representation for the respondents.

8. Before proceeding to decide these cases on merit it is useful to refer to the various decisions of this Court cited. Of course in the authority in Y. Vijayaiakshmi @ Rambha v. Manickam Narayanan, Proprietor, Seventh Channel Communications, represented by its Power of Attorney Agent, Thanigaivelan, 2005 (3) CTC 480 a learned Judge of this Court (S.R Singharavelu, J.) after going through the various judgments of the High Courts and the Hon'ble Supreme Court has come to a conclusion that (a) the complaint under Section 138 of the Negotiable Instruments Act, shall be signed by the complainant himself; (b) an affidavit of complainant in proof of execution of power of attorney shall be filed; (c) sworn statement of the power of, attorney agent can be recorded on the date of presentation of the complaint; (d) sworn statement of payee i.e, the complainant shall have to be taken on future date on his appearance in Court and (e) the Magistrate shall thoroughly examine the statement of the agent as well as the principal and the documents produced before exercising discretion under Sections 202 and 203 of the Code of Criminal Procedure.

9. Another learned Judge of this Court (T.S Arunachalam, J. - as he then was) in Ruby Leather Exports v. K. Venu (M/S), 1994 (1) L.W (Cri.) 34 has taken a view that the power of attorney agent is virtually the payee himself or the holder in due course. Therefore, filing of a complaint for offences under Section 138 of the Negotiable Instruments Act by the power of attorney agent is valid in the eye of law.

10. Another learned Judge of this Court (M. Karpagavinayagam, J.) in the authorities in Mahendra Jain v. C.K. Mohammed Ali, 1997 (2) L.W (Cri) 637 and Y. Sreelatha @ Roja v. Mukanchand Bothra, 2002 (1) CTC 530: 2002 (2) Crimes 19, has held that the power of attorney holder of the payee is competent to make the complaint in writing. The phrase “in writing” cannot be taken to mean to be in writing by the payee himself. Further the cognizance taken on the basis of the sworn statement of the power of attorney holder is valid. Section 142(a) of the Negotiable Instruments Act does not exclude or prohibit the complaint being initiated by the power of attorney agent on behalf of the payee or holder in due course of cheque.

11. Recently, a Full Bench of the Andhra Pradesh High Court in Ramachandra Rao, K. v. State of A.P, 2005 (2) CTC 417 has held that when Section 142 of the Negotiable Instruments Act, 1881, does not specifically state that the payee or holder in due course of dishonoured cheque should personally file the complaint, the power of attorney agent of the payee or holder in due course can legally lodge the criminal proceedings under Section 138 of the Negotiable Instruments Act.

12. With great respect to the learned Judge of this Court (S.R Singharavelu, J.), I differ from the view of the learned Judge that the complaint shall be signed by the complainant himself, as Section 142 of the Negotiable Instruments Act does not specifically state that the payee or holder in due course of the cheque shall lodge the complaint himself; the power of attorney holder who has every authority to sign and act on behalf of the principal can lodge a complaint under Section 138 of the Negotiable Instruments Act. Further the affidavit of the complaint in proof of execution of the power of attorney is totally redundant inasmuch as the deed of power of attorney is produced at the time of tiling the complaint by the power of attorney holder. The sworn statement of the power of attorney can be recorded at the very inception. Only during the course of trial, the payee will have to come to the box and speak from his knowledge about the legal liability of the drawer, issuance of cheque, presentation of the cheque for payment, dishonour of the cheque, issuance of statutory notice, etc.

13. Here in this case, the power of attorney holder has signed the complaint and filed the same along with the power of attorney. There is no abuse of process of Court. The complaint has been rightly filed by the power of attorney holder on behalf of the payee, and there is no warrant for quashing the criminal proceedings initiated by the power of attorney holder on behalf of the payee. Therefore, the criminal original petitions are liable to be dismissed.

14. In the result, the criminal original petition Nos. 1354 to 1357 of 2002 stand dismissed. Consequently, connected criminal miscellaneous petitions are also dismissed.

T. Muthukaruppan Pet... v. G. Raghavan, Rep. By...