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Shanti Ranjan Pal (Junior Engg.)     26 August 2012

Power of attorney of a a/c payee cheque

I got a a/c payee chaque. dt-18/07/2012, I drop it for encashment and bounced on 06/08/2012. I send a notice to party according to U/S 138 after CH bounced.My bank and party's residents are same place (Asansol, W.B.)and my home is in a different place(Kalyani, W.B.). I stay asansol for my job.Now I am out of W.B. upto October. so if party don't pay me within certain period, what should I do? Can I give Power of attorney to my mother to suit legal action at KALYANI Subdivisonal court?

 



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 3 Replies


(Guest)

In the judgment of this Court in Ravi Gupta vs. R.C. Tiwari, the earlier decisions of the Supreme Court including the one Jimmy Jahangir Madan v. Bolly Cariyappa Hindley, 1 (2004) 12 SCC 549, were analysed and the legal position was summarized as follows: "(i) A complaint under Section 138, NI Act can be filed by a complainant through a POA.

(ii) However, the complainant will have to seek the permission of the Court concerned for pursuing the complaint through a POA.

(iii) The leave of the Court to file the complaint through a POA can be sought by making an averment in the body of the complaint or by filing a separate application for that purpose along with the complaint. (iv) The complaint filed through a POA has to be accompanied by a copy of the deed of special or general POA executed by the complainant. Where the complainant is a company this requirement can be satisfied even after the filing of the complaint. CRL.M.C. 670/2008 Page 7 of 11 (v) The examination of the POA holder upon oath at the time of presentation of the complaint and reduction into writing the substance of such examination shall be sufficient compliance with of procedure contemplated under the Cr.P.C. It is unnecessary thereafter for the complainant to also be examined on oath on his appearance on a future date."

 

14. Subsequently, the Supreme Court in M/s. Shankar Finance & Investments (supra) reiterated the position by holding that the complaint does not become bad in law on account of it not being signed by the complainant but by the POA holder. It was held however that the descripttion in the cause title of the complaint must be properly made. In para 9 it was observed, inter alia that if the cause title described the complainant as the proprietor or the proprietary concern represented by the attorney holder that would satisfy the requirement. Importantly in M/s. Shankar Finance & Investments, the Supreme Court referred Janki Vashdeo Bhojwani and Another vs. Indusind Bank Ltd. and observed that in the case of proprietary concerns, "many a time, the authorized agent or attorney holder may be the only person having personal knowledge of the particular transaction; and if the authorized agent or the attorney holder has signed the complaint, it will be absurd to say that he should not be examined under Section 200 of the Code and only the Secretary of the Company or the partner of the firm a proprietor concern, who did not have personal knowledge of the transaction could be examined". Accordingly, this Court finds no merit in the contention of the learned CRL.M.C. 670/2008 Page 8 of 11 counsel for the petitioner that the complaint in this case was not maintainable since it was not signed by the complainant but by the POA holder, and that the pre-summoning evidence was in the form of the affidavit of the POA.

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Shanti Ranjan Pal (Junior Engg.)     29 August 2012

Thank you so much for your information. I have one more question i.e. I sent a NOTICE according to NI 138, and the Cheque drawee got it on 28/08/2012.So he have to pay within 15 days. But it he fail to pay how much maximum time shall I get to suit complain in court ?


(Guest)

The 15 days period starts from 28/08/2012 to pay the amount as per notice or to reply the same. Subsequent to lapse of the said 15 days, if the drawer of cheque fails to pay the amount or reply your notice, you can file complaint within 30 days after lapse of the said 15 days.

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