1. These M.Cs are filed by the accused in C.C Nos. 464/98 & 376/98 pending before the Judicial First Class Magistrate's Court-V, Thiruvananthapuram and Chief Judicial Magistrate's Court, Thiruvananthapuram respectively, to quash the entire proceedings under Section 482 of the Cr. P.C On the basis of Annexure-B complaints filed by the complainant, who is the 2nd respondent in Cri. M.C 2719/99 and 1st respondent in Cri. M.C 3383/99, the petitioner is standing trial for the offence punishable under Section 138 of the Negotiable Instruments Act before the J.F.C.M's Court-V, Thiruvananthapuram and C.J.M's Court, Thiruvananthapuram respectively. Annexure-A in the copy of the notice sent by the complainant intimating the petitioner about the dishonour of the cheques and calling upon him to pay the amount.
2. The petitioner has contended that/mnexure-A notice sent on behalf of the drawee of the cheque is not in conformity with proviso (b) to Section 138 of the N.I Act, that Annexure-B complaint does not disclose the ingredients of the offence punishable under Section 138 of the N.I Act and that the notice is issued not as per the instructions given by the payee or the holder in due course as stipulated in proviso (b) to Section 138 of the N.I Act and is issued as per the instructions given by the power of attorney holder of the payee of the cheque and therefore, the notice is invalid in law.
3. Proviso (b) to Section 138 of the N.I Act stipulates that the payee or the holder in due course of the cheque, as the case may be, should make a demand for the payment of the cheque amount by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. In this case there is no contention that Annexure-A notice is not sent within 15 days of the receipt of information from the bank regarding the dishonour of the cheque. No particular form of notice is prescribed under proviso (b) to. Section 138 of the N.I Act. It only stipulates that a notice in writing should be given to the drawer of the cheque within 15 days of the receipt of information from the bank regarding return of the cheque unpaid, demanding the payment. It is the statutory duty of the drawer to pay the amount within 15 days of the receipt of notice under proviso (c) to Section 138 of the N.I Act. In Annexure-A notice the drawer of the cheque, the petitioner herein is called upon to pay the cheque amount within 15 days from the date of receipt of the notice. Therefore, Annexure-A notice is perfectly in compliance with proviso (b) to Section 138 of the N.I Act. Therefore, this contention raised by the petitioner is absolutely unsustainable.
4. The next contention raised by the petitioner is that Annexure-A notice is issued not by the payee or the holder in due course as stipulated in proviso (b) to Section 138 of the N.I Act and it is issued by the advocate on instructions given by the power of attorney holder of the payee of the cheque. Therefore, according to the petitioner, Annexure-A notice is illegal and invalid since under proviso (b) to Section 138 of the N.I Act it is incumbent upon the drawee or the holder in due course, as the case may be, to issue notice, and the power of attorney holder of the payee is incompetent to issue notice under proviso (b) to Section 138 of the N.I Act.
5. In support of this contention the counsel for the petitioner relies upon the decision in T.C Mathai v. District & Sessions Judge, (1999) 3 SCC 614: (1999 Cri LJ 2092) wherein it has been held that under the Code of Criminal Procedure the appearance of the accused cannot be made through a power of attorney holder and 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.
6. The above decision has absolutely no application to the facts of this case. In this case the power of attorney holder as the agent of the payee has given instructions to the advocate to issue the registered notice and file the complaint before the Court under Section 142 of the N.I Act on behalf of his principal. He has not acted or pleaded for his principal and the petitioner has no such case also. Section 27 of the N.I Act empowers agency by a person who is competent to make, draw, accept, endorse, deliver and negotiate a promissory note, bill of exchange or cheque under Section 26 of the N.I Act. Therefore, the power of attorney holder of the payee is entitled to act on behalf of the payee under Section 27 of the N.I Act with the only limitation that he can accept or endorse a bill of exchange only with the specific agency in that behalf. Therefore, the contention of the petitioner that the notice issued in this case is invalid since the instruction to issue the notice is not given by the payee himself but given by his power of attorney holder, is not at all sustainable.
7. The judgment passed by a single Judge of this Court in Koya Moideen v. Hariharan, (1996) 1 Ker LT 389 holding that the executor of the Will cannot be treated as the holder in due course and he cannot file a complaint under Section 138 of the N.I Act unless there is an averment in the complaint that he had paid consideration to the deceased and thereby he became the holder in due course, cannot be followed as it is per incuriam of Section 27 of the N.I Act and Section 306 of the Indian Succession Act Since Section 27 of the N.I Act empowers agency and Section 306 of the Indian Succession Act provides that demands and rights of action of or against the deceased survive to and against the executor or administrator, except those causes of action which are expressly mentioned in that section as it will not survive to an against the executor or administrator. Therefore, the contention of the petitioner based on the above decision is not sustainable.
8. The argument advanced by the counsel for the petitioner that Section 27 of the N.I Act is applicable only with regard to civil liability and Section 138 of the Act being a special offence specifically created by amendment of the N.I Act very recently, in order to attract the criminal liability under Section 138 of the N.I Act, the ingredients of Section 138 of the N.I Act should be satisfied, is also not sustainable, since it is clear from the N.I Act that the provisions of Section 27 of the N.I Act are applicable to civil as well as criminal liabilities under the Act.
9. The further contention raised by the petitioner is that the power of attorney holder being the agent of the principal cannot further delegate the power delegated to him by the principal and therefore, the notice issued by the advocate on the instruction given by the power of attorney holder is illegal and invalid, is also absolutely unsustainable. The power of attorney holder has only given instructions to the counsel to, send the registered notice and to prepare the complaint as the agent of the principal. The advocate has issued the notice and preferred the complaint before the Court not as agent of the person who gave instructions to send the notice or prepare the complaint, but as a pleader of that person as empowered under Section 30 of the Advocates Act. Therefore, in giving instructions to the advocate to send the registered notice and to prepare the complaint by the power of attorney holder as the agent of his principal, there is no question of further delegation of the power delegated to him by his principal as per the power of attorney executed in his favour.
10. The contention of the petitioner is that the transaction by which the cheques are alleged to have been issued by the petitioner to the complainant attracting the provisions of Section 138 of the N.I Act is very personal in nature and the principal himself alone and not the power of attorney holder can disclose or explain the same. Therefore, the subject-matter being very personal to the knowledge of the drawee, he himself should give instructions to send the registered notice and to prepare the complaint under Section 138 of the N.I Act.
11. It is true that with regard to the matters which are in the special or personal knowledge of the principal, he himself has to disclose that fact before the Court and his power of attorney is incompetent to state anything before the Court regarding those matters. But what are the matters in the special or personal knowledge of the principal which he alone can disclose before the Court and not by his power of attorney are matters to be decided by the Court. Giving instructions to send the registered notice or to prefer a suit or complaint or other proceedings on behalf of his principal cannot be construed as matters which are in the special or personal knowledge of the principal which cannot be disclosed by his power of attorney.
12. Section 138 or 142 of the N.I Act does not contain a similar provision as in Sections 198 or 199 of the Cr. P.C debarring the Court from taking cognizance of certain offences except upon a complaint made by some person aggrieved of the offence concerned. Section 142 of the N.I Act only lays down that cognizance of the offence punishable under Section 138 can be taken by a Court only upon a complaint in writing made by the payee or as the case may be, the holder in due course of the cheque, notwithstanding anything contained in the Code of Criminal Procedure.
13. In the decision in C.B.S Gramaphone Records and Tapes (India) Ltd. v. Noorudeen, (1991) 2 Ker LT 265 a single Judge of this Court has held that a complaint filed by the authorised representative of a company under Section 142 of the N.I Act is maintainable.
14. In the decision in Hamsa v. Ibrahim, (1993) 2 Ker LT 698 a single Judge of this Court has held that a power of attorney of a payee or holder in due course can make a complaint under Section 142 of the N.I Act. I am in respectful agreement with the view expressed by this Court in the above judgments. Therefore, the contention of the petitioner that instruction to send the notice under the proviso (b) to Section 138 of the N.I Act and to prepare the complaint under Section 142 of the N.I Act should have been given by the drawee himself and therefore, the entire proceedings initiated against the petitioner alleging offence punishable under Section 138 of the N.I Act is illegal and the same is liable to be quashed under Section 482 of the Cr. P.C is not sustainable. The question whether any fact is within the special or personal knowledge of the drawee or holder in due course, as the case may be, and the power of attorney holder cannot depose before the Court regarding those aspects and therefore, the principal himself should give evidence regarding those aspects are matters to be considered by the trial Court at the stage of evidence. Therefore, I find absolutely no ground to quash the criminal proceedings launched against the petitioner alleging offence punishable under Section 138 of the N.J Act in these cases. Therefore, the Cri. M. Cs. are dismissed.
15. Petition dismissed.