Cheque dishonour

S.D. Singh (Querist) 01 July 2015 This query is : Resolved
Sir,
Can a power of attorney holder can file and represent case us 138 of nia act including recording statement u/s 200 etc.

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Hemant Agarwal (Expert) 02 July 2015
1. POA holder can File case u/s 138

2. POA holder CANNOT record his Statement

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P. Venu (Expert) 02 July 2015
Agreed. However, POA cannot depose on matters in the personal knowledge of the principal.

ABDUL RAZIQUE (Expert) 02 July 2015
The Supreme Court of India while hearing two appeals has adjudged that a Power of Attorney holder can file a Complaint U/S 138 NI Act, but it must be specifically pleaded and supported by documents.

SAINATH DEVALLA (Expert) 04 July 2015

COMPLAINT UNDER 138 CAN BE FILED BY PLEADER / POWER OF ATTORNEY HOLDER

Cognizance of offence of cheque dishonour – No condition precedent that complaint should have been signed by the payee as holder of cheque – A complaint need not be presented by complainant himself – Pleader or counsel in whose favour vakalatnama has been executed by complainant is competent to file complaint.
AIR 2007 (DOC) 286 (RAJ.); 2 (2007) BC 206 (RAJ.)

“Section 142 of 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 sec 138 NI Act.”
AIR 2007 (DOC) 51 KER.; 2006 (3) BANK J 425 (KER)

ABDUL RAZIQUE (Expert) 05 July 2015
Nothing more to Add

DEFENSE ADVOCATE.-firmaction@g (Expert) 05 July 2015
There are regular changes in the cheque law and many JUDGMENTS from APEX COURT which are not brought to the knowledge of the concerned HIGH COURTS and hence such judgments come as above from RAJ AND KERALA HIGH COURTS.

The cheque law has been modified w.e.f 2003 wherein the examination in chief affidavit with documents have to be given with complaint. So if the POA holder or even any other person does not have personal knowledge of the matter , NO COMPLAINT CAN even BE FILED.

Thereafter various HC s and particularly Delhi HC had given procedure which were considered by APEX COURT in its 2014 jUDGEMENT and gave clear and specific instructions to all courts that examination in chief affidavit with original documents must be submitted along with complaint in cheque cases and if it is in order and than only process should be issued.

SO IT ALSO PROVIDES GOLDEN OPPORTUNITY FOR ANY ACCUSED IF THE CASE IS FROM COMPANY,NBFC , BANKS and such un natural bodies than fight first on the issue of maintainability of complaint since filed by un- authorised persons that is he is not having personal knowledge and he or she is only staff or employee of the complainant.