u/s 138 NI Act
Chandra Prakash Sinha
(Querist) 04 May 2011
This query is : Resolved
can any individual power of attorney holder of the complainant ( Not any Firm) can file a complaint case and depose his evidence in the case? I want to Know in detail because one case has been filed by my one of the advocate and case has been fixed for hearing on cognizance point and complainant/ cheque holder has not been examined in enquiry stage.
Guest
(Expert) 04 May 2011
in these cases the complainant must be examined and the P/A holder does not knows the real facts and his evidence is not admissible
Arvind Singh Chauhan
(Expert) 04 May 2011
I think Yes. But he can not depose in place of complainant. As there is a question of examination of complainant at inquiry stage is concerned, if affidavit of complainant has been filed in support of complaint. It is sufficient for cognizance.
Guest
(Expert) 04 May 2011
I would like to differ with the opinion of the above two experts. I would like to ask, what type of examination of the compainant/ cheque holder of the dishonoured cheque is required?
Basavaraj
(Expert) 05 May 2011
I agree with PS Dhingra, CEO, Dhingra Group.....there will be no type of examination of the compainant/ cheque holder of the dishonoured cheque is required.
I have posted some citation related to this query.
1. Section 138, Criminal Procedure Code, 1973, Sections 460 & 190 - Dishonour of cheque - Complaint by Power of Attorney holder - Power document not presented initially - Court taking cognizance of complaint - It is illegal, but does not vitiates the proceedings - Illegality is curable u/s 460(e) Cr.P.C. (S.Manian Vs P.M.Nachimuthu) 2001(1) CIVIL COURT CASES 544 (Madras).
2.Sections 138, 142 - Power of attorney holder - Duly constituted power of attorney can file complaint - There is no specific bar under the provisions of Section 142 of the Act for filing a complaint by the special power of attorney. (Rajeev Indani Vs D.Veerendra Haggade) 2001(2) CIVIL COURT CASES 586 (Kant.) : 2002 (2) ISJ (BANKING) 0075
3 Section 138 - Dishonour of cheque - Complaint can be filed by duly authorised agent of payee - There is no requirement that complaint should be filed personally by payee or holder in due course. (Surinder Singh Vs John Impex (Pvt.) Ltd. ) 1997(1) CIVIL COURT CASES 81 (P&H) : 1996 (3) RCR (CRL.) 0622 : 1997 (1) BANKING CASES 0247
4 Section 138, 141 - Dishonour of cheque - Complaint by power of attorney holder - It is permissible. (Manimekalai Vs Chapaldas) 1995(2) CIVIL COURT CASES 292 (Madras) : 1995 (2) RCR (CRL.) 0183 : 1995 (2) BCLR 0600 : 1995 CRL. L.J. 1102
DEFENSE ADVOCATE.-firmaction@g
(Expert) 06 May 2011
POA can appear only for un natural persons., in NI 138 cases.In all other cases SC has overuled all HC citations.Pl read indusind bank case.
Even for un natural persons POA can not depose for acts not done by him or no direct knowledge.
Arun Kumar Bhagat
(Expert) 09 May 2011
PA Holder can file case under N.I.Act. See judgement of Shankar Finance case passed by Supreme Court.
