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pramod.kilu@gmail.com (pramod.kilu@gmail.com)     28 July 2011

The cheque has bounced what should i do know

hi this is pramod i got two post dated  cheques from rakesh worth of 75000.but before the date i have to move to sweden regarding my studies after coming here i am calling him he is not responding and the the chequee has got bounced now what should i do i am in sweden .help me what all the steps to taken to get my money back 



Learning

 21 Replies

AKSHANSH SINGHAL (ADVOCATE)     29 July 2011

Hi Pramod !

The cheque bounce is punishable offence under section 138 of the Negotiable Instrument Act. The provision are compensation double the amount ant imprisionment upto 2 years. what u need to do is , just serve a legal notice abt dishonour of the cheque on presentation to bank thru counsel/advocate. in case the person failing to repay the amount shall be liable to be punished under section 138 of N.I.Act. thereafter file a case with appropriate court fees and court will ask to the offender to present before the court and in failure to do so , court can issue arrest warrant as well. 

 

Akshansh Singhal

+91-9929942717

AKSHANSH SINGHAL (ADVOCATE)     29 July 2011

If u r in sweeden than appoint a attorney (through Power of Attorney) to represent you and give appropriate rights to him for taking care of the case on ur behalf. 

Akshansh Singhal

+91-9929942717

 

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     29 July 2011

Power of attorney not allowed in criminal complaints.

THANKACHAN V P (Advocate & Notary)     30 July 2011

No doubt 138 complaint can be filed through Power of Attorney holder.


 

2008 (3) KLT SN  33 (C.No. 38) Del.

Hon'ble Mr. Justice Dr. S. Muralidhar

Taruna Batra v. Shikha Batra

Crl. M.C. No.4751 of 2005 etc.

31.1.2008

 

 

Negotiable Instruments Act 1881, Ss.138 & 142(a) - Complaint filed by Power of Attorney Holder - Power of Attorney should be filed along with the complaint.

 

 

Held : The learned Metropolitian Magistrate before whom a complaint filed under S.142 (a), N.I. Act through a power of attorney is presented should, before taking cognizance, and issuing summons, satisfy himself that such a power of attorney exists, and that it is a valid document executed in accordance with law. For instance, the Magistrate, if presented with a certified copy of the power of attorney, should also require the production of its original and satisfy himself about its genuineness before proceeding to issue summons. This will be the minimum safeguard for permitting criminal complaints under the N.I. Act 

 

     @page-KLTSN34(C.No.38)Del.#

 

to be filed under S.142 (a), N.I .Act through a power of attorney for an offence under S.138 thereof. 

 

III 1994 (1) Crimes 820 (Mad.) & 1997 Crl. L.J. 1942 (A.P.) Followed

 

Equivalent Citation: 2008 (65) AIC 452 (Del. H.C.)

 

 

JUDGMENT

Dr. S. Muralidhar, J.
 
These are four revision petitions filed under section 482 of the Code of Criminal Procedure, 1973 ('Cr. P.C) seeking the quashing of Complaint Case Nos. 177/2003, 178/2003, 179/2003, 180/2003 titled Smt. Shikha Batra through her Husband/Attorney v. Smt. Taruna Batra and the summoning order dated 13th November, 2003 passed by the Metropolitan Magistrate ('MM'), New Delhi summoning the petitioner for the offence under section 138 of the Negotiable Instruments Act, 1881 ('N.I. Act'). 
 
Background facts
 
The complainant Smt. Shikha Batra is the sister-in-law of the petitioner Smt. Taruna Batra. In other words, Smt. Taruna Batra is the wife of the brother of Smt. Shikha Batra. The marriage took place on 14th April, 2000 after which the petitioner began residing in her matrimonial home. According to the petitioner, soon after the marriage her husband got a bank account opened in her name in Canara Bank, Janpath Branch, New Delhi and obtained her signatures on several blank cheques stating that he wanted to utilise them for business purposes. The petitioner obliged by signing all those cheques.
2.   It is averred in the petition that the petitioner's husband and other family members, including the husband and sister-in-law Smt. Shikha Batra, the complainant in this case, are carrying on their business in the name of M/s. Virtual Financial Services Pvt. Ltd. where they all are Directors. They are also Directors of M/s. Vishwas Securities Pvt. Ltd., and certain other firms. The petitioner was also one of the Directors of M/s. Vishwas Securities Pvt. Ltd., which fact was not known to the petitioner till a reply was filed by her husband to an application filed by her under section 24 of the Hindu Marriage Act, 1955.
 
3.   According to the petitioner, there was matrimonial discord and this culminated in proceedings before the Crime Against Women Cell (CAW) where a compromise was arrived between the parties on 24th May, 2002. In terms of the compromise, it was agreed that the Petitioner, her husband Shri Amit Batra and the child would live on the second floor of the property No. B-135, Phase-I, Ashok Vihar, and that the in-laws will reside on the ground and first floor. However this did not improve matters, and led to a FIR being registered on 10th January, 2003 under sections 406/498-A/506 read with section 34 Indian Penal Code (IPC) against the husband and the in-laws. On 11th January, 2003, the husband and in-laws were arrested. It is stated that from 12th January, 2003 onwards, the petitioner was compelled to return to her parents' house. 
 
4.   There were further proceedings seeking mandatory injunction in Suit No. 87/2003 filed by the petitioner against her husband and in-laws in the Court of the Civil Judge, Delhi. An order was passed in that suit on 4th March, 2003 directing both parties not to interfere with the possession of each other. This order was reversed by the judgment dated 17th September, 2004 of the learned Senior Civil Judge, Delhi. The petitioner then succeeded before this Court which by an order dated 17th January, 2005 restored the order dated 4th March, 2003 passed by the learned Civil Judge. However, the respondent further took the matter in appeal to the Supreme Court where she apparently succeeded. This entire narration of facts is to show that the parties have been having continuing disputes against each other since January 2003.
 
5.   It is stated that the petitioner's husband had filed HMA Case No. 207/2002 which was dismissed for default on 26th March, 2004. The maintenance ordered by the learned Judge was not honoured by the petitioner's husband. The respondent then further filed a criminal complaint against the petitioner and her parents pursuant to which FIR No. 695/2003 was registered at Police Station Ashok Vihar for the offences under sections 380/447/447/506/34,I.P.C. This Court by an order dated 15th April, 2004 stayed further criminal proceedings.
6.   According to the petitioner, when she did not receive any maintenance, she had sought to withdraw money from her bank account. On examining the statement of account, it was revealed that a sum of Rs. 10 lakh had been transferred from her account to that of M/s. Virtual Financial Services Pvt. Ltd. The petitioner then got issued a legal notice on 12th June. 2003 to Virtual Financial Services Pvt. Ltd. and its Directors including her sister-in-law asking for return of the money. It is stated that after receipt of this notice, the Petitioner's husband filled up the four blank cheques which had earlier been signed by the petitioner, presented them to the bank for clearance and got them dishonoured. The said four cheques were:-
 
(i)   No. 996843 dated 16.6.2003 for a sum of Rs. 5 lakh;
(ii)   No. 996844 dated 16.6.2003 for Rs.2,70,000/-; 
(iii)   No. 996845 dated 18.6.2003 for Rs. 5 lakh; and 
(iv)   No. 996846 dated 18.6.2003 for Rs. 2,70,000/-.
 
7.   Claiming that the said four cheques were given by the petitioner to the respondent on account of loan allegedly given by the respondent to the petitioner and interest thereof a notice was issued on 25th June, 2003 to the petitioner by the respondent demanding payment of the principal and interest amounts. This was followed by the filing of the four criminal complaints referred to earlier, one for each dishonoured cheque, in which the impugned order dated 13th November, 2003 was passed by the MM, New Delhi summoning the petitioner for the offence under section 138, NI Act.
 
Submissions of Counsel
 
8.   The first submission of the learned Counsel for the petitioner is that the complaint itself was not maintainable since it has been presented through a Power of Attorney and the complaint did not enclose a copy of the Power of Attorney. He submits that a complaint filed under section 142 (a), NI Act for the offence under section 138 NI Act could not have been filed through a Power of Attorney and in any event no cognizance could have been taken by the learned MM without a copy of the power of attorney being even produced along with the complaint. He places reliance upon the judgments of the Madras High Court in M/s. Ruby Leather Exports v. K. Venu Rep. Vandana Chemicals, (III 1994 (1) Crimes 820) and the Andhra Pradesh High Court in M/s. Swostic Confers Put. Ltd. v. M/s. Deepak Brothers.(I [1998] BC 47 = 1997 Cr LJ 1942)
 
9. Counsel for the petitioner next submits that given the background of the disputes between the parties it is clear that the present complaint is mala fide and as a counterblast to the case filed by the petitioner against the respondent under sections 498-A/406/506 read with section 34, I.P.C. as well as the notice issued by her seeking the return of Rs. 10 lakh transferred from her account to that of M/s. Virtual Financial Services Pvt. Ltd. He submits that upon reading the complaint as a whole it is plain that no case is made out for proceeding against the petitioner  for the offence under section 138 NI Act. He says that it is highly improbable in June 2000 the petitioner had issued post-dated cheques dated 18th June, 2003. It is even more improbable that they could have been issued on that very date when, the parties were ranged against each other in civil and criminal disputes. He further says that filling up the date 6n a blank cheque and presenting it after the disputes between the parties had been going on and were pending, is a purely mala fide action and that the complaint should be quashed on this ground itself. He also points out that there is a wilful suppression of material facts in the complaint and this constitutes a gross abuse of the process of law by the complainant.
 
10.   The learned Counsel for the complainant submits that as far as section 138, N.I. Act is concerned, all that the MM was required to examine at the stage of issuing summons was whether the cheque was drawn by the petitioner and was when presented dishonoured. He submits that the petitioner does not dispute the fact that she had signed the cheques or that they were dishonoured on the ground of insufficient funds. This was enough to attract the offence under section 138, N.I. Act and the learned MM cannot be faulted for issuing summons. He further submits that the parties had regular commercial transactions independent of the matrimonial relations. He refers to certain correspondence in the form of lawyer's notice which showed that during the subsistence  of the matrimonial relations the parties had entered into business dealings. He accordingly submits that the complaint cannot, in this background, be said to be mala fide. Relying on the judgments of the Supreme Court in Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122 = 2005 (25) AIC 379 (SC) = 2005 (51) ACC 188) and Daljeet Singh Chandok (SH.) v. State, (II [2006] CCR 43 = 128 [2006] DLT 516 he submits that disputed questions of fact, particularly in commercial transactions, cannot be gone into in a petition under section 482, Cr. P.C., and that the matter will have to be examined only at the trial.
 
11.   As regards the complaint being filed through a Power of Attorney, the learned Counsel for the respondent was unable to show whether such Power of Attorney was indeed filed along with the complaint. He was not able to produce a copy even before this Court. He is also unable to dispute the legal position as explained by the Madras High Court in Ruby Leather Exports.
 
Issues
12.   It requires to be explained that the facts that the four cheques in question were signed by the petitioner and when presented by the respondent to the bank for clearance were dishonoured are not in dispute. The contention of the petitioner however is that the complaint is still an abuse of the process of law in view of the background of the relationship between the parties. Therefore, on a consideration of the submissions of the Counsel for the parties and the points of dispute, the following issues arise for determination by this Court:-
 
(a) Was the complaint filed by the respondent complainant under section 142 (a), NI Act against the petitioner for the offence under section 138, NI Act maintainable inasmuch as it was filed through a power of attorney of the complainant and could the learned MM have taken cognizance without a copy of such power of attorney being produced?
 
(b)   Independent of (a), is the complaint taken as a whole so improbable that no offence can be said to be made out against the petitioner for the offence under section 138, NI Act?
 
(c)   Does the complaint constitute an abuse of the process of law? 
 
Re: Issue (a)
13.   It is plain from a reading of the complaint that it has been filed by Smt. Shikha Batra through her power of attorney holder and husband Snri Amit Relhan. The documents appended to the complaint have been indicated at the end of the complaint as under:-
 
"List of Documents
 
1.   Cheque bearing No. 996846 in favour of the complainant dated 18.6.2003 drawn on Canara Bank, Janpath, New Delhi, for a sum of Rs. 2,70,000/-.
2.   Bank Memo dated 18.6.2003.
3.   Copy of notice dated 25.6.2003.
4.   Postal receipts.
5.   U.P.C. Slip."
 
This clearly shows that the power of attorney was not filed along with the complaint. From the list of witnesses, it is seen that "complainant through attorney" is the first witness. The summoning order dated 13th November, 2003 itself shows that at the time cognizance was taken and the summoning order issued, the complainant was absent and the application for exemption from the appearance of the complainant was allowed. The learned MM clearly did not apply his mind to the fact that the complaint had been filed through a power of attorney. He did not ask to see the power of attorney. In any event, the complainant through attorney was not even present.
 
14.   In Ruby Leather Exports, the precise question that arose for consideration by the Madras High Court is set out in para 15 of the judgment which reads as under:-
 
"Can a power of attorney agent or a person authorised in writing by the payee or the holder in due course of the cheque, be competent to make a complaint in writing under section 142(a) of the Negotiable Instruments Act to facilitate valid cognizance being taken by the Magistrate?"
 
After exhaustively discussing the case law including judgments of the Supreme Court, the Madras High Court answered the question in para 30 of the judgment in the affirmative in the following words (Crimes pp. 831-32):-
 
"...a Power of Attorney Agent of the payee or the holder in due course of the cheque, will be competent to make a complaint in writing under section 142 (a) of the N.I. Act, to facilitate valid cognizance being taken by the Magistrate. It makes no difference, if the Power of Attorney is executed by one individual in favour of another or executed by a company in favour of a particular person." The Madras High Court added that it would be open for the accused to assail the validity of the power of attorney in their defence during the trial.
 
However, the matter did not end there. The Madras High Court was dealing with a batch of cases where similar questions arose. In some cases filed through a power of attorney, the copy of the power of attorney had been produced before the Magistrate at the time of taking cognizance. In some others the document was not so produced. This led to the further question whether the validity of the order taking cognizance would be different in either situation.
In para 32 of the said judgment in M/s. Ruby Leather Exports the Madras High Court was dealing with a case where the authorization given by the complainant company to its representative was not pro-aced before the Magistrate at the time of taking cognizance. The Court held that the cognizance would be barred under section 142(a), N.I. Act. In contrast in paras 34 and 36 where it was dealing with cases where the power of attorney was produced, the orders taking cognizance were upheld.
 
The resultant position is that the judgment of the Madras High Court of Ruby Leather Exports holds that even where it is permissible for an individual payee to file a complaint under section 142(a), NI Act through a power of attorney, the learned Magistrate cannot validly take cognizance of the offence complained of unless the document constituting the power of attorney is produced at that time of taking cognizance.
 
15.   In Swastik Coaters Pvt Ltd., it was similarly held by the Andhra Pradesh High Court that a complaint under section 138, NI Act filed without producing the document authorising the complainant to file such complaint was not maintainable.
 
16.   This Court is inclined to follow the dicta of the above two High Courts. It is accordingly held that a complaint under section 142(a), N.I. Act could be validly filed through a power of attorney holder of the complainant. It is further held that the cognizance of the offence on such complaint can be validly taken by the learned MM only if the document constituting the power of attorney executed by the complainant is presented along with the complaint. Otherwise the order taking cognizance and issuing summons would be invalid. The learned MM before whom a complaint filed under section 142(a), NI Act through a power of attorney is presented should, before taking cognizance; and issuing summons, satisfy himself that such a power of attorney exists, and that it is a valid document executed in accordance with law. For instance, the Magistrate, if presented with a certified copy of the power of attorney, should also require the production of its original and satisfy himself about its genuineness before proceeding to issue summons. This will be the minimum safeguard for permitting criminal complaints under the N.I. Act to be filed under section 142(a), N.I. Act through a power of attorney for an offence under section 138 thereof.
 
17.   In the present case, admittedly the power of attorney was not filed along with the complaint and the impugned summoning order also does not indicate that the learned MM examined such document. For this reason alone, the summoning order cannot be sustained and is liable to be set aside. Issue (a) is answered accordingly.
 
Re: Issue (b)
 
18.   Considering that lengthy arguments have been addressed touching on the criminal complaint, the Court proceeds to answer the next two issues as well. The scope of the powers and jurisdiction of this Court under section 482, Cr. P.C.  to interfere in criminal proceedings have been well settled. It is necessary only to refer to following passage in the judgment in State of Haryana v. Bhajan Lal (1992 Supp 1 SCC 335 at 378 = 1991 (28) ACC 111 (SC):--
 
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
 
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155 (2) of the Code.
 
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
 
(4)   Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155 (2) of the Code.
 
(5)   Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)   Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
 
(7)   Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
 
19.   Keeping the above parameters in view, this Court proceeds to examine if the criminal complaints in the instant case calls for interference by this Court.
 
20.   In the first place, it requires to be noticed that the complainant and the accused are related to each other. The complainant is the sister-in-law of the accused. There is no dispute about the fact that there has been a breakdown of relations between the" petitioner and her husband and therefore between the petitioner and her sister-in-law, the respondent herein, as well since May 2002. Numerous cases have been filed by the parties against each other since then. It is in this background that it requires to be examined whether it is conceivable that the accused could have issued the four cheques dated 18th June, 2003 to the complainant in the manner indicated and at a time as suggested by the complainant respondent in the complaint.
 
21.   It is apparent from a reading of the complaint that the four cheques were not issued on 18th June, 2003, It is the complainant's case that these were post-dated cheques handed over by the petitioner to the complainant some time in June 2000. At that time, i.e. June 2000 it was hardly expected by either party that there would be bitter disputes between the parties within a period of two years. The paras 2, 3 and 4 of the complaint read as under:-
 
"2. That because of the close relations with the accused, the complainant made appropriate arrangements for the said loan and handed over a friendly loan to the accused for the period of three years in the form of two cheques Nos. 525635 dated 7.6.2000 and cheque No. 525631 dated 17.6.2000 both for Rs. 5 lacs each and were drawn on Andhra Bank, Vishwas Nagar, Shahdara, Delhi.
 
3. That the said loan was handed over to the Accused on the mutual agreement that along with the principal amount the accused will adequately compensate the complainant for utilising her said amount. In this regard the accused issued two post-dated cheques of Rs. 2,70,000/- each to compensate the complainant two post dated cheques of Rs. 5 lacs each towards the principal amount in the name of the complainant. At the time of issuing the said cheques the accused assured the Complainant that the same shall be encashed on presentation on the requisite dates.
4. That the complainant presented the cheque bearing No. 996846 dated 18.6.2003 for a sum of Rs. 2.70.000/- (Rupees two lac seventy thousand only) drawn on Canara Bank, Janpath, New Delhi with her bankers Canara Bank. Parliament Street, New Delhi but the said cheque was returned unpaid by the bankers of the Accused for the reasons "insufficient funds" vide their bank memo dated 18.6.2003 and the same was informed to the complainant: by its bankers which fact was immediately brought to the knowledge of the accused."
 
22.   As against the above version, we have the petitioner's version where she says that the husband of the petitioner took her signature on the blank cheques some time in June 2000. The only admitted portion in the two conflicting versions is that the petitioner indeed signed the cheques and when presented for payment they were dishonoured. But for a person to issue cheques in June 2000 which are post-dated three years beyond the date on which they are signed and for sums of money which are not easily explained, seems highly improbable given the relationship between the parties at that time and thereafter. The story of a loan being given to the Petitioner by the respondent "on mutual agreement" becomes less and less probable when the complaint is examined as a whole. If the complainant were to be believed, it would mean that the petitioner here had agreed that she would pay a sum of Rs. 2,70,000/- as interest for a loan of Rs. 5 lakh at the end of three years. This works out to simple interest at 18% p.a for three years. The version of the complainant that the parties were in an independent business relationship is improbable and there is really no material to evidence this at all. It seems hardly probable that a business person would enter into such a transaction by accepting post-dated cheques beyond three years without even a written agreement or security as collateral and somehow expect that they would in fact be honoured when presented.
 
23.   Given the bitter relationship between the parties this much is clear that there was no occasion for the Petitioner here to issue the four cheques on 18th June, 2003. So either they were dated as such in June 2000 itself or they were simply given as blank cheques. The former version for the reasons already explained appears to be inherently absurd and improbable. If on the other hand they were blank cheques, then the filling up of those cheques with dates of 18th June, 2003 when the signatory of the cheque was in a full-fledged litigation with the payee is certainly an unpardonable act of tampering with the material document and making it appear as if the cheques, was drawn at a time when the drawer knew that if presented the cheque would be dishonoured. Given the background of the litigation between the parties, it is absurd to suggest that the drawer of the cheque, i.e. the petitioner here, would have intended to make any payment at all to the respondent much less such huge sums as  represented by the four cheques on 18th June, 2003. Filling up a blank cheque with a date three years after it was first signed, and to suit the complainant's convenience for the purposes of filing a criminal complaint for an offence under section 138, N.I. Act indeed would show that the complaint has been instituted maliciously. However, even if one were to go entirely by the complainant's version the complaint is fraught with apparent improbabilities.
 
24.   A careful consideration of the materials on record persuades this Court to conclude that, even if the complainant's version on the issuance of the cheques were to be accepted then at least one of the parameters identified in the judgment in Bhajan Lal viz., that the allegations made in the complaint "are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused" is attracted. This is a ground on which the complaint is liable to be quashed, Issue (b) is answered accordingly.
 
Re-Issue (c)
25.   The timing of the filing of the complaint, and it being a counterblast to the matrimonial discord between the parties cannot be discounted. Interestingly, the complaint is solely based on the issuance of the four cheques and their presentation. The background of the other proceedings pending in the Criminal Courts and the Civil Courts between the parties is not even adverted to. This is a wilful suppression of facts in the complaint which doubtless has a bearing on the bona fides of the complaint itself and therefore cannot be condoned. Even while the learned MM cannot be expected to be on guard against such wilful suppression of facts, this Court can certainly, in exercise of its powers under section 482, Cr. P.C. interfere to prevent such misuse of the process of law when the fact of such abuse comes to its notice.
 
26.   Also, this Court finds that the complaint has not approached the Criminal Court with clean hands and the complaint itself is an abuse of the process of law. This is yet another ground warranting interference by this Court under section 482, Cr. P.C. The Court is conscious that the power to quash criminal proceedings must be exercised sparingly and only in rare cases. This is certainly in the category of a rare case in which the Court finds it necessary to interfere to quash the criminal proceedings.
 
27.   For  all   the   aforementioned  reasons,   this  Court  quashes Complaint Case Nos. 177/2003, 178/2003, 179/2003, 180/2003 titled "Smt. Shikha Batra through her Husband/Attorney v. Smt.Taruna Batra", the summoning order dated 13th November, 2003 passed by the MM, New Delhi and all proceedings consequent thereto.
 
The petitions are allowed with costs of Rs. 5,000 each which will be paid by the respondent to the petitioner within a period of four weeks. The pending applications are disposed of.

RK MEHTA (DEPUTY GENERAL MANAGER - LEGAL)     31 July 2011

Dear Pramod,


You will need to keep track of the time-line as well. You should make a written demand, through registered AD post, FAX, email etc. within 30 days of the knowledge of the dishonour of the cheques. In case 30 days have already passed, you should represent the cheques and in case these bounce the second time also, send the written demand in above terms, either yourself or through an advocate. In case you dont get the amount of the cheques paid in 15 days after service of the demand, you will have to file a complaint within one month thereafter. For that, of course you will have to appoint an attorney in writing as you are not in India. For drafting the power of attorney and filing a complaint you should take professional assistance from some competent local Advocate.

1 Like

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     31 July 2011

Advocate thankachn you have given citation of HC , which seems to have been given without going through earlier SC  judgment hence not relevant.

Morever in such judgments the court has expressed opinion and not direction and hence ratio is not applicable

PLEASE READ SC CITATION IN APPEAL NO 6790 OF 2003.

THANKACHAN V P (Advocate & Notary)     31 July 2011

Dear JSKN I am not arguing with you but see this ruling of SC in 2009 . I have filed number of cases through power of attorney for Chit Company and no case is aquitted on the ground of Power of Attorney. 

 

 

2009 (2) KLT  991 (SC)

Hon'ble Mr. Justice B.N. Agrawal & Hon'ble Mr. Justice G.S. Singhvi

Praveen v. Mohd. Tajuddin

Crl. A. No.1338 of 2002 and Connected Cases

Decided on 22nd April, 2009

 

 

Negotiable Instruments Act 1881, S.142 - A complaint under S.138 can be filed by payee through his power of attorney holder.

 

Summary

 

Question raised is: Whether a complaint under S.138 can be filed by payee through his power of attorney holder ?

 

Court held that a complaint under S.138 can be filed by payee through his power of attorney holder.

 

Held: A complaint under S.138 can be filed by the payee through his power of attorney holder.

 

@page-KLT992#

 

ORDER

 

Criminal Appeal No.1338 of 2002

 

Heard learned counsel for the parties.

 

By the impugned order, the High Court quashed the prosecution of respondent No.1 Mohd. Tajuddin under S.138 of the Negotiable Instruments Act, 1881 (for short, “the Act”) only on the ground that the complaint was filed by the power of attorney holder of the payee and not the payee himself. The question whether the signing of complaint by the payee himself is sine qua non for taking cognizance of offence under S.138 of the Act is no longer res integra. In Shankar Finance and Investments v. State of Andhra Pradesh and Ors. ((2008) 8 SCC 536), this Court interpreted S.142 of the Act and held that a complaint under S.138 can be filed by the payee through his power of attorney holder. In this case, the complaint was filed by the payee through his power of attorney holder. This being the position, the High Court was not justified in quashing the prosecution of respondent No.1.

 

Accordingly, the appeal is allowed, impugned order is set aside and the petition filed by respondent No.1 under S.482 of the Code of Criminal Procedure is dismissed. Now, the trial court shall proceed with the case in accordance with law.

 

As the complaint was filed in 1996, we direct the concerned Trial Court to conclude the trial within six months from the date of receipt/production of the copy of this order.

 

Criminal Appeal Nos. 813 of 2003, 440 of 2005 and 443 of 2005.

 

In view of the order passed in Criminal Appeal No. 1338 of 2002, these appeals are allowed in the similar terms.

 

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     31 July 2011

I am happy of such arguments since it gives depth to the subject  instead of only criticism.

What you are saying is for un natural persons , it is allowed but not  for individuals.

THANKACHAN V P (Advocate & Notary)     31 July 2011

1.First you said Power of attorney not allowed in criminal complaints.

2.Thereafter I produced the HC citation and   you replied that I  "have given citation of HC , which seems to have been given without going through earlier SC  judgment hence not relevant.

Morever in such judgments the court has expressed opinion and not direction and hence ratio is not applicable

 

 

 

PLEASE READ SC CITATION IN APPEAL NO 6790 OF 2003

.

 

"

3. Again I brought the 2009 SC ruling bofore you and now you say it is applicable only to "un natural persons , it is allowed but not  for individuals."

4. I do not know whether  Mohd Thajudeen (the complainant in 2009 (2) KLT  991 (SC)) is an individual or an " un natural person"!!!!!!!.

5. Will you please show me the authorities for arguments.   

 

 

 


DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     01 August 2011

1) It is the irony of our legal system that whenever the matter goes to higher courts the court decides only the issue and not the whole case and sends it back to trial court.

2) In the instant citation the case was by the company and not individual , and POA is allowed for companines.

3) But still the SC has not touched the section 60 of evidence act , so person who has personal knowledge can only file complaint and give deposition.

4) It was the mistake of the accused of lower court in the instant case that he has not also taken the pleading that the donee was not having personal knowledge , if such pleading was taken the result would have defferent.

5) So such citations are not applicable to all cases as mathamatic solutions.

WE THEREFORE CLAIM THAT NI 138 CASES CAN EASLILY BE WON., AND WE WIN HANDS DOWN.

 I will appreciate if you still disagree for further inputs since such discussion gives depth to knowledge.

THANKACHAN V P (Advocate & Notary)     01 August 2011

Dear I appreciate your thirst of knowledge but not misintrepret what stated by the SC. Let me know where it is stated tha t"In the instant citation the case was by the company and not individual , and POA is allowed for companines".
Mohd Thajudeen is not a company.If you are deliberatly shutting your eyes I am helpless.
 
Anyway I am bringing some more citations before you though  you may not  admit Venkitesan,Vijayakumar,Remani ,Gopalakrishnan and Veeran Haji are individuals.You have every right to argue that 138 complaint cannot be filed by PA as it is a criminal offense . But at same time you have to admit that SC has held that 138 can be filed by PA even if the complainant is a human being like Venkiteasan, Vijayakumar,Remani,Gopalakrishnan and Veeran Haji.Though 138 is triable by criminal courts , it is a case having civil nature ,so there is no point in your arguments that "PA not allowed in criminal Complaints".
 
 And I am sorry to say that your arguments are not supported by any authority. I am happy if you show me any citation which says that 138 complaint is not permitted through PA, if the complainant is an individual. 

 

2006 (2) KLT  996 (Mad.)
Hon'ble Mr. Justice M. Jeyapaul
Muthukaruppan v. Raghavan
Crl. O.P. Nos.1354 to 1357 of 2002 etc.
Decided on 19th January, 2006
 
 
Negotiable Instruments Act 1881, Ss.132  & 142 -- Complaint can be signed and filed by the holder of Power of Attorney of the payee of cheque or its holder in due course -- Power of Attorney also competent to present sworn statement -- But payee himself will have to take witness box during trial.
 
S.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 S.138 of the Negotiable Instruments Act. Further, the affidavit of the complainant 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 filing 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. (para. 9)
2005 (33) AIC 437 (Mad.) Dissented from
 
1994 (1) LW (Crl.) 34; 1997 (2) LW Crl.637;
2002 (2) Crimes 19 & 2005 (30) AIC 792 Relied on 
 
 
JUDGMENT
 
M. Jeyapaul, J.
 
Crl.O.P.No. 1354 of 2002 is filed against CC No. 7611 of 1998 on the file of the learned IInd Metropolitan Magistrate, Egmore.
 
Crl.O.P.No. 1355 of 2002 is filed against CC No. 7607 of 1998 on the file of the learned IInd Metropolitan Magistrate, Egmore.
 
Crl.O.P.No. 1356 of 2002 is filed against CC No. 7608 of 1998 on the file of the learned IInd Metropolitan Magistrate, Egmore.
 
Crl.O.P.No. 1356 of 2002 is filed against CC No. 7610 of 1998 on the file of the learned IInd Metropolitan Magistrate, Egmore.
 
2. The petitioner is the accused in all the aforesaid cases launched against him for the offences under S.138 of the Negotiable Instruments Act. The payee G. Raghaven 
 
@page-KLT997#
 
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 Smt. G. Ramani in Crl.O.P. No. 1357 of 2002 have filed a complaint through their power of attorney, K.Gopalakrishnan.
 
3. 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 Smt. 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.
 
4. There was no representation for the respondents.
 
5. 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. Vijayalakshmi @ Rambha v. Manickam Narayanan, Proprietor, Seventh Channel Communications, represented by its Power of Attorney Agent, Thanigaivelan (2005 (33) AIC 437 (Mad.), 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 S.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 complainant; (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.
 
6. Another learned Judge of this Court (T.S. Arunachalam, J. - as he then was) in Rubey Leather Exports, etc. v. K.Venu, etc., 1994 (1) LW(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 S.138 of the Negotiable Instruments Act by the power of attorney agent is valid in the eye of law.
 
7. Another learned Judge of this Court (M. Karpagavinayagam, J.) in the authorities in B. Mahendra Jain v. C.K. Mohammed Ali, 1997 (2) L.W. (Cri) 637 and Y.Sreelatha (A) Roja v. Mukanchand Bothra, 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, S.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.
 
@page-KLT998#
 
8. Recently, a Full Bench of the Andhra Pradesh High Court in Ramachandra Rao, K. v. State of A.P., (2005 (30) AIC 792 (A.P.)) has held that when S.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 S.138 of the Negotiable Instruments Act.
 
9. 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 S.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 S.138 of the Negotiable Instruments Act. Further, the affidavit of the complainant 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 filing 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.
 
10. 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.
 
11. In the result, the Criminal Original Petition Nos. 1354 to 1357 of 2002 stand dismissed. Consequently, connected Criminal Miscellaneous Petitions are also dismissed.
 
 
1993 (2) KLT 698 
K.T. Thomas, J.
Hamsa v. Ibrahim
Crl.M.C. No.486 of 1993.
 Decided on 26th August, 1993.
 
 
Negotiable Instruments Act 1881, Ss.l42& 138-A power-of-Attorney holder of a payee or holder in due course can make a complaint under S.142.
 
Merely because S.142 of the N.I Act does not contain similar provisions as in Ss.198 and 199 of the Code, no inference can be drawn that Parliament never intended to allow the com plaint to be filed through an agent or power-of-attorney holder of a payee or holder in due course. The power of attorney holder can do everything em powered by the donor and all such acts done by the donee shall have legal recognition and acceptance as though such acts were done by the donor himself. If a construction is made to the effect that no such complaint as envisaged in S.142 of the N.I. Act can be made by a power-of-attorney holder on behalf of the payee or holder in due course, its consequence is the following: Under Clause (b) of the proviso to S.138 demand for payment should be made in writing within 15 days of receipt of information regarding dis-honour of cheque. Under S.142 the complaint should be made within one month of the date on which the cause of action arose. If the payee or holder in due course falls ill before the expiry of the said period or if he has to leave the station due to unavoidable reasons the cause of action could die out as the complaint cannot be filed by an agent or a power-of-attomey holder. It would not be in the interest of justice to construe the provision as containing a restriction that the complaint should be made by the payee or the holder in due course (as the case may be) “personally”. A power-of-attorney holder of a payee or a holder in due course (as the case may be) can make a complaint under S.142 of the N.I. Act. (paras. 6,8,10 & 11)
                                                                 
Crl.R.P.No.209/91 & AIR 1937 Nag. 65 Relied on 
 
AIR 1956 S.C. 604 & 1946 Mad. 411 Referred to
 
P. Vijaya Bhanu For Petitioner
 
B. Raman Pillai & S. Vijayakumar For Respondent
 
 
ORDER
 
In the rapid proliferation of “cheque cases” in criminal courts with the introduction of S.138 and its allied provisions in Negotiable Instruments Act, 1881 (for short the N.I. Act’) any answer to the question raised in this Criminal Miscellaneous Case may have some impact. The question raised is this: Can the payee or holder in due course of a cheque file a complaint in the court as per S.142 of the N.I. Act through his power-of-attorney holder?
 
@page-KLT699#
2. Shri. P. Vijaya Bhanu and Shri. S. Vijayakumar, advocates, argued on opposite positions: A brief statement of facts in this case may be made. A complaint has been filed in the court of a judicial magistrate of first class for the offences under S. 138 of the N.I. Act against the petitioner herein as the accused. One Mohammed Syed @ Veeran Haji is the complainant in the case, but respondent herein (one Ibrahim Hajee) has signed the complaint as power-of-attorney holder of the complainant. Learned magistrate took cognizance of the offence and issued process to the petitioner. Now the petitioner has come before this Court invoking the inherent powers of the High Court envisaged in S. 482 of the Code of Criminal Procedure (for short ‘the Code’) to have the complaint quashed.
 
3. Though the petitioner has raised more than one ground in his petition for quashing the complaint, learned counsel for the petitioner has, during arguments, confined to one point that “the respondent is only the power-of-attorney holder of the payee who has no locus standi to file the complaint under S. 138 of the N.I. Act”. Counsel contended that the complaint is liable to be dismissed as the magistrate has no jurisdiction to take cognizance of the offence on such a complaint.4. Under S. 142 of the N.I. Act “no court shall take cognizance of any offence punishable under S. 138 except 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. The contention is that since the provision debars a court from taking cognizance of the offence except on a complaint filed either by the payee or by the holder in due course, no complaint can be filed by any other person, be he the agent or holder of a power-of-attorney of such person.
 
5. Shri. P. Vijaya Bhanu contended that if Parliament had intended to permit the agent of a payee or holder in due course to file the complaint, necessary words would have been employed in the statute for the purpose. Absence of such words in the statute is sufficient indication that legislature did not intent so, contended the counsel. He cited Ss. 198 and 199 of the Code in support of the contention. As per those provisions, a court is debarred from taking cognizance of certain offences except upon a complaint made by some person aggrieved by the offence concerned. However, special provision is made in both sections enabling another person to file the complaint on behalf of such aggrieved person under certain circumstances and on certain conditions.
 
6. Merely because S. 142 of the N.I.Act does not contain similar provisions as in Ss. 198 and 199 of the Code, no inference can be drawn that Parliament never intended to allow the complaint to be filed through an agent or power-of-attorney holder of a payee or holder in due course.
 
7. In considering the question involved here legal position regarding the right of a person to appoint another as his agent has to be understood atleast in a general manner. 
 
@page-KLT700#
 
According to the Law of England “every person who is sui juris has a right to appoint an agent for any purpose whatever, and that he can do so when he is exercising a statutory right no less than when he is exercising any other right” (vide Jackson & Co. v. Napper - (1986) 35 Ch.D. 162 at page 172). This was recognised as a common law right. Blackburn, J. has stated in Queen v. Justices of Kent ((1873) 8 Q.B. 305) that “at common law, when a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it”. The Supreme Court has declared in a decision that the law in India is also the same (vide Ravulu Subbarao v. I. T. Commr. -1956 SC 604). Venkatarama Ayyar, J. in the said decision has observed that the said rule is subject to certain well known exceptions such as, when the act to be performed is personal in character, or when the act to be performed is annexed to a public office, or to an office involving any fiduciary obligation. “But apart from such exception, the law is well-settled that whatever a person can do himself, he can do through an agent” observed the learned Judge in the said decision. The above can thus be regarded as the legal position regarding the right to appoint an agent.
 
8. “Power-of-attorney” is the instrument by which a person is authorised to act as the agent of the person granting it (vide Black’s Law Dictionary). In Stroud’s “Judicial Dictionary”, power-of-attorney is described as “an authority whereby one is set in the turne, stead, or place of another to act for him”. Stone, C.J. has adopted the said definition as effective and acceptable in Ramdeo v. Lalu Natha (AIR 1937 Nag. 65). S.2 of the Power-of-Attorney Act, 1882 empowers the donee of a power-of-attorney to do anything “in and with his own name and signature” by the authority of the donor of the power. The section declares that everything so done “shall be as effectual in law as if it had been..... done by the donee of the power in the name and with the signature.... of the donor thereof (shorn of words which are not necessary in this context). In the light of such declaration, the legal position is that the power of attorney holder can do everything empowered by the donor and all such acts done by the donee shall have legal recognition and acceptance as though such acts were done by the donor himself.
 
9. Making a complaint before a court is not an act which would fall within the exceptions envisaged by Venkatarama Ayyar, J. in Ravulu Subba Rao v. I.T. Commr. (1956 SC 604). Patanjali Sastri, J. (as he then was) had stated in .I T. Commr. v. Subba Rao (AIR (33) 1946 Mad. 411) that S.2, Power-of-Attorney Act cannot override the specific provision of a rule made under a different statute which requires that a particular act should be done by some one “personally”. The bench was considering the effect of adding the word “personally” in R.6 of the Income-tax Rules framed under S.59 of the Income Tax Act as per which an application for registration under S.26A of the Income Tax Act should have been signed by the partner personally. It was the said decision of the Madras High Court which reached the Supreme Court in Ravulu Subba Rao v. I. T.Commr. (1956 SC 604). But the principle enunciated in the said decision has no application to S. 142 of the N.I. Act since there is no requirement in it that the complaint should be made by the payee or holder in due course “personally”. Parliament would have advisedly refrained from imposing such a restriction.
 
@page-KLT701#
 
10. If a construction is made to the effect that no such complaint as envisaged in S.142 of the N.I. Act can be made by a power-of-attorney holder on behalf of the payee or holder in due course, its consequence is the following: Under Clause (b) of the proviso to S.138 demand for payment should be made in writing within 15 days of receipt of information regarding dis-honour of cheque. Under S. 142 the complaint should be made within one month of the date on which the cause of action arose. If the payee or holder in due course falls ill before the expiry of the said period or if he has to leave the station due to unavoidable reasons the cause of action would die out as the complaint cannot be filed by an agent or a power-of-attorney holder. It would not be in the interest of justice to construe the provision as containing a restriction that the complaint should be made by the payee or the holder in due course (as the case may be) “personally”.
 
11. My attention has been drawn to the unreported decision of a learned single Judge of this Court (Thulasidas, J.) in Crl.R.P.No.209/91 in which the learned Judge has stated that “there is nothing in the Act that the complaint under S. 142 should be filed by the aggrieved person personally; there are indications in the Act itself to show that steps could be taken to file the complaint on behalf of the aggrieved party”. I am in respectful agreement with the aforesaid view.
 
In the result, I hold that a power-of-attorney holder of a payee or a holder in due course (as the case may be) can make a complaint under S. 142 of the N.I. Act. No other point has been canvassed before me.
 
Accordingly, I dismiss this Criminal Miscellaneous Case.
 
Dismissed
 

pramod.kilu@gmail.com (pramod.kilu@gmail.com)     02 August 2011

thank you guys for your support .

but i need to know that now i am in sweden andlittle bit confused what to do next can any one explain me clearly . and in one cheque(july 15 ) the guy has given was with spelling mistake  .

and i got these cheque's and i got promisery note from that rakesh that they will encash the cheques by july 15(cheque 1 ) and july 22(cheque 2 ).

how many days it will take to clear these court case and when can i get the money ?what is the intrest i can collect from them .

and this come under fraud also?

 

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     02 August 2011

Instead of arguing in legal manner you are using abrasive language and I am asking for contrary viewes:=

Again find the deff in the citation , it says for filing only and what it says further please read :-

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. (para. 9)

So court has not touched section 60 of evidence act.

SACHIN AGARWAL (ADVOCATE)     04 August 2011

I agree with JSDN. The POA can file a complain under sectio 138 but the payee wuld have to appear as witness during trial.


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