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Wednesday, 6 November 2013

No court can decline to take cognizance on ground that complainant was not competent to file complaint U/S 138 OF NI Act

HIGH COURT OF JUDICATURE AT ALLAHABAD The said order was challenged before this Hon'ble Court on the ground that the complaint was filed by the holder of power attorney and not by the aggrieved person in whose name the cheque was issued. This Court while quashing the summoning order directed the court below to examine the actual aggrieve person. In compliance thereof the statement of Urmila Devi was recorded under Section 200 Cr.P.C., the original cheque, receipt of registered notice and statement of Surajpal was recorded, whereby prima facie offence u/s 138 Act was made out and the impugned order dated 20.8.2008 was passed. 
From the perusal of the complaint the opposite party no.2 has specifically stated that his wife has executed a power of attorney in his favour and was authorised to file the complaint. The cheque in question was in the name of Urmila Devi which was deposited by him in her account in the capacity of holder in due course who has the knowledge of the transaction between the applicant and his wife, even assuming that the opposite party was not competent to file complaint but no court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. 


Case :- APPLICATION U/S 482 No. - 3364 of 2009

Petitioner :- Amit Yadav
Respondent :- State Of U.P. And Another
Citation;2013 ALL M R (cri)JOURNAL 135



Hon'ble Naheed Ara Moonis,J.
Heard Shri Shrawan Kumar, the learned counsel for the applicant, Shri Ram Sajivan, the learned counsel appearing for the opposite party no.2 and the learned AGA.
The instant petition under Section 482 Cr.P.C. has been filed by Amit Yadav, challenging the summoning order dated 20.8.2008 in complaint case no.441 of 2008, whereby the applicant has been summoned under Section 138 Negotiable Instrument Act.
Prior to the filing of the present petition the applicant has approached this Court challenging the validity of the notice by means of Criminal Misc. Application No.3118 of 2008 on various grounds. This Court vide order dated 27.3.2008 set aside the summoning order dated 27.7.2007 and directed the trial court to summon the aggrieved person Urmila Devi who had issued the power of attorney in favour of her husband, the opposite party no.2 for the purposes of examining her under Section 200 Cr.P.C. and further directing the court concerned to extend the time for filing the complaint under the proviso to clause (b) of Section 142 of Negotiable Instrument Act.
The court below in pursuance of the direction given by this Court had given an opportunity to Urmila Devi who had authorised the opposite party no.2 by filing a complaint afresh by giving benefit of Section 142 of the N. I. Act. But from the order of the trial court it appears that her statement was recorded under Section 200 Cr.P.C. and of the witness Surajpal as P.W.1 and after going through the evidence the photocopy of the cheque of rupees one lac dated 15.9.2006 and service of notice arrived at the conclusion that prima facie case is made out against the applicant and as such passed the order summoning the applicants under Section 138 N. I. Act.
It is vehemently argued by the learned counsel for the applicant that the complaint has been filed by the opposite party no.2 under Section 138 N. I. Act in respect of the two cheques issued by the applicant in favour of Urmila Devi which was presented before the bank and was dishonoured due to insufficient fund. Thereafter, Urmila Devi had given a legal notice on 19.2.2007 but the money was not returned. The opposite party no.2 filed a complaint, though he has no right to file complaint merely because he has been given the power of attorney on behalf of Urmila Devi. The opposite party no.2 is not an aggrieved person, therefore the complaint itself is barred by Section 9 and 142 of the N. I. Act, which run as follows :-
"9. "Holder in due course".- "Holder in due course" means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer,
or the payee or indorsee thereof, if [payable to order,] before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title."
"142. Cognizance of offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) no Court shall take cognizance of any offence punishable under section 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;
(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:
[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;]
(c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138."
While passing the order dated 27.3.2008 the another Bench of this court directed the aggrieved person who is the wife of the opposite party no.2 to file a complaint, yet only her statement was recorded under Section 200 Cr.P.C. and the court below has again passed the summoning order against the applicant. In this regard he has relied upon the decision of Kerala High Court in the case of Ranjitha Balasubramaniam & another Vs. Shanti Group & others, AIR 2007 (NOC) 944 (KAR.), wherein the complaint was filed by the holder of power of attorney and as such the complaint was dismissed. The accused was acquitted on the ground that the holder of power of attorney is not authorised to file complaint on behalf of the actual holder and therefore it is argued that in the light of the aforesaid judgment of the Kerala High Court the present proceedings is an abuse of the process of court and as such is liable to be quashed.
Per contra, the learned counsel appearing on behalf of opposite party no.2 has contended that the controversy with regard to the filing of complaint by a holder of power of attorney has been well considered by the Hon'ble Apex Court in the decision of M/s. Shankar Finance & Investments Vs. State of A. P. & others, reported in 2008 SCCL.COM 924. In para 9 following observation has been made :-
"9. The next question is where a proprietary concern carries on business through an attorney holder, whether the attorney holder can lodge the complaint? The attorney holder is the agent of the grantor. When the grantor authorizes the Attorney Holder to initiate legal proceedings and the attorney holder accordingly initiates legal proceedings, he does so as the agent of the grantor and the initiation is by the grantor represented by his attorney holder, and not by the attorney holder in his personal capacity. Therefore where the payee is a proprietary concern, the complaint can be filed : (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the 'payee'; (ii) The proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorney-holder under a power of attorney executed by the sole proprietor. It follows that in this case the complaint could have been validly filed by describing the complainant in any one of the following four methods :-
"Atmakuri Shankara Rao, sole proprietor of M/s. Shankar Finance & Investments"
Or
"M/s. Shankar Finance & Investments a sole proprietary concern represented by its propreitor Atmakuri Shankara Rao"
Or
"Atmakuri Shankara Rao, sole proprietor of M/s. Shankar Finance & Investments, represented by his Attorney Holder Thamak Satyanarayana"
Or
"M/s. Shankar Finance & Investments, a proprietory concern of Atmakuri Shankara Rao, represented by his Attorney Holder Thamada Satyanarayana".
What would have been improper is for the Attorney holder Thamada Satyanarayana to file the complaint in his own name as if he was the complainant."
It is further contended that in pursuance of the order passed by this Hon'ble Court the statement of the aggrieved person Urmila Devi had been recorded by the court below and the court below has found all the allegations made in the complaint are consistent with the statement of Urmila Devi and the witness Surajpal prima facie offence under Section 138 N. I. Act, therefore passed the summoning order. There is no illegality in passing the order which has been passed subsequent to the order passed by this Hon'ble Court.
Considering the submissions made by the learned counsels for the parties, this Court has found that there is no illegality or perversity in the complaint filed by the holder of power of attorney, who is fully empowered to file the complaint as Section 142 of the Act provides that a complaint under Section 138 can be made by the payee or the holder in due course of the said cheque. It is undisputed that two cheques of rupees two lacs dated 19.5.2006 were given by the applicant and when presented before the bank concerned for payment came out to be dishonoured with remarks insufficient fund. A legal notice was given to the applicant even thereafter the amount was not repaid. Hence, the complaint was filed. The court below proceeded to summon the applicant under Section 138 N.I. Act by order dated 27.7.2007. The said order was challenged before this Hon'ble Court on the ground that the complaint was filed by the holder of power attorney and not by the aggrieved person in whose name the cheque was issued. This Court while quashing the summoning order directed the court below to examine the actual aggrieve person. In compliance thereof the statement of Urmila Devi was recorded under Section 200 Cr.P.C., the original cheque, receipt of registered notice and statement of Surajpal was recorded, whereby prima facie offence u/s 138 Act was made out and the impugned order dated 20.8.2008 was passed.
From the perusal of the complaint the opposite party no.2 has specifically stated that his wife has executed a power of attorney in his favour and was authorised to file the complaint. The cheque in question was in the name of Urmila Devi which was deposited by him in her account in the capacity of holder in due course who has the knowledge of the transaction between the applicant and his wife, even assuming that the opposite party was not competent to file complaint but no court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. The eligibility criteria is now satisfied by the court below by passing the order on 20.8.2008 in compliance of the order of this Court. The trial court will decide the case after recording evidence adduced before it as per law. There is no merit in the instant petition. The prayer for quashing of proceedings including the summoning order in complaint case is refused. The petition is accordingly dismissed.
Interim order is hereby vacated.
Office is directed to communicate this order to the court below to proceed with the case in accordance with law.
However, it is directed that in case the applicant appears and surrenders before the court below and applies for bail, his prayer for bail shall be considered and decided in accordance with law keeping in view of the settled law
this Court has found that there is no illegality or perversity in the complaint filed by the holder of power of attorney, who is fully empowered to file the complaint as Section 142 of the Act provides that a complaint under Section 138 can be made by the payee or the holder in due course of the said cheque. laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P 2009 reported in 2009 (3) ADJ 322 (SC). 
Order Date :- 24.8.2011
Mustaqeem. 


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