Chandrika (Smt.) through her Power of Attorney Holder vs State of Rajasthan and Another

H.R. Panwar, J.—By the instant criminal miscellaneous petition u/s 482, Cr.P.C. the order dated. 10.2.2005 passed by the Additional Sessions Judge (Fast Track) No. 1, Bhilwara (for short "the revisional Court") has been challenged by the petitioner whereby the revision petition filed by the respondent No. 2 was allowed and the order taking cognizance of offence dated 29.4.2004 passed by the Additional Chief Judicial Magistrate, Bhilwara (for short "the trial Court") on a complaint filed by the petitioner Chandrika (Smt.) through her Power of Attorney Holder Sagar Mal for the offence u/s 138 of the Negotiable Instruments Act, 1881 (for short "the Act of 1881"), was set aside.

The facts and circumstances giving rise to the instant criminal misc. petition are that a complaint was filed by petitioner Chandrika (Mrs.) through her Power of Attorney Holder Sagar Mal who is her husband, for the offence u/s 138 of the Act of 1881 against the respondent No. 2 M/s. Handloom House through its proprietor Shri Vijay Kumar Dua before the trial Court. The trial Court took the cognizance of the offence u/s 138 of the Act of 1881 against the respondent No. 2 on 29.4.2004 and issued the process. Thereafter, an application was filed by the respondent No. 2 for recalling of the order taking cognizance and the same was dismissed by the trial Court and, thereafter, the order taking cognizance came to be challenged by the respondent No. 2 by way of a criminal revision before the revisional Court being Criminal Revision Petition No. 77/2004 the revisional Court set aside the order of the taking cognizance solely on the ground that Section 142 of the Act of 1881 provides that no Court shall take cognizance of any offence punishable u/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. According to revisional Court, the complaint was though filed in the name of payee but it was filed through Power of Attorney and payee herself did not appear and filed the complaint and as such, the complaint is not maintainable. Aggrieved by the order of revisional Court, the petitioner has filed the instant misc. petition.

I have heard learned Counsel for the parties.

It is contended by learned Counsel for the petitioner that the requirement as envisaged u/s 142 of the Act of 1881 to file the complaint is that a complaint should be filed in the name of payee or the holder in due course of the cheque and not that the payee or the holder in due course of cheque should personally appear before the Court and file the complaint. Learned Counsel for the petitioner has relied on the decisions of Hon''ble Supreme Court in M.M.T.C. Ltd. and Another Vs. Medchl Chemicals and Pharma (P) Ltd. and Another, in Shankar Finance and Investments v. State of A.P. and Ors. III (2008) CCR 301 (SC) : IV (2008) BC 523 (SC) : AIR 2008 SC 1017, a decision of Kerala High Court in Hamsa v. Ibrahim I (1994) BC 314 : ILR 1994 Ker622 , in K. Gopalakrishnan Vs. Karunakaran rep. by the Power of Attorney Holder, represented by the Power of Attorney Holder, in Aashirwad Enterprises v. Sambhar Salts Ltd. 1997(3) RCR (Crl.) 221 (Raj.), in Ajay Kumar Jain v. State ofRajasthan 2008 WLC (Raj.) 229 , in Mohil Fibers Vs. Shri Saai Agro Industries and Another, and in T. Muthukaruppan Vs. G. Raghavan, rep. by his Power of Attorney, K. Gopalakrishnan and Others,

Learned Counsel appearing for the accused-respondent has relied on a decision of Single Bench of this Court in Smt. Lalita Hundiya v. Govind Narayan Khuteta and Ors. 2008(1) RCC 410.

I have given my thoughtful consideration to the rival submissions made by learned Counsel for the parties and carefully gone through the material on record.

Section 142 of the Act of 1881 deals with the cognizance of offences under the Act of 1881, which reads as under:

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 u/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;

(b) such complaint is made within one month of the date of 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 u/s 138.

From the plain reading of Section 142(a) of the Act of 1881, it is clear that the cognizance of the offence u/s 138 of the Act of 1881 can be taken upon a complaint, in writing, made by the payee or as the case may be, the holder in due course of the cheque. Thus, the complaint has to be in the name of payee or the holder in due course of cheque. Section do not provide that the complaint has to be personally signed and presented by the payee or holder in due course of cheque. What it requires is the complaint should be in the name of payee or as the. case may be, the holder in due course of cheque. In the instant case, the complaint has been filed in the name of Smt. Chandrika, who is the payee of the cheque. Indisputably, the respondent No. 2 issued the cheque in the name and in favour of the Smt. Chandrika wife of Sagar Mal and she is the complainant in the instant case. The only question raised by learned Counsel for the accused-respondent is that the complaint though filed in the name of complainant-Smt. Chandrika, the payee in whose favour of the cheque was issued by the respondent but it has been filed through Power of Attorney Holder of Smt. Chandrika, namely, Sagar Mal and therefore, the complaint is not maintainable.

The similar controversy came to be considered by the Kerala High Court in Hainsa v. Ibrahim (supra). The question came up for consideration before the Kerala High Court was as to whether the power of attorney of the payee has no locus standi to file the complaint u/s 138 of the Act of 1881 ? The Court held that merely because Section 142 of the Negotiable Instruments Act does not contain similar provisions as in Sections 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. The question regarding the right of a person to appoint another as his agent has also been considered in the said decision and the Court observed as under:

In considering the question involved here legal position regarding the right of a person to appoint another as his agent has to be understood at least in a general manner. 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 and Co. v. Napper 1986 (35) Ch. D. 162 . This was recognized 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 Ravula Subba Rao and Another Vs. The Commissioner of Income Tax, Madras, 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.

The Court further observed as under:

Power of attorney is the instrument by which a person is authorized 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 turn, stead or place of another to act for him" Stone, C. J. has adopted the said definition as effective and acceptable in AIR 1937 65 (Nagpur) Section 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 (short 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.

The Court further observed as under:

Making a complaint before a Court is not an act which would fall within the exception envisaged by Venkatarama Ayyar, J. in Ravulu Subba Rao v. I.T. Commissioner (supra) Patanjali Sastri, J. (as he then was) had stated in I.T. Commissioner v. Subar Rao AIR 1946 (33) Mad. 411, that Section 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 someone ''personally''. The bench was considering the effect of adding the word ''personally'' in Rule 6 of the Income Tax Rules framed u/s 59 of the Income Tax Act as per which an application for registration u/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. (supra). But the principle enunciated in the said decision has no application to Section 142 of the NI 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.

On these premises, the Kerala High Court, held that on dishonour of cheque, a complaint can be filed by power of attorney in holder due course of the cheque. It was further held that there is nothing in the Act of 1881 to show that the complaint must be filed by holder of due course personally.

In MMTC Ltd. and Anr. v. Medical Chemicals and Pharma (P) Ltd. and Anr. (supra) the Hon''ble Supreme Court held that if any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, then the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute. The only eligibility criterion prescribed by Section 142 is that the complaint u/s 138 must be by the payee or the holder in due course of said cheque. This criterion is satisfied as the complaint is in the name and on behalf of the appellant company who is the payee of the cheque.

In Shankar Finance and Investments v. State of A.P. and Ors. (supra), a question came to be considered by the Hon''ble Supreme Court was as to whether the complaint u/s 138 of the Act signed by a Attorney holder is not maintainable. Relying on the decision of Hon''ble Supreme Court in MMTC Ltd. v. Medical Chemicals and Pharma (P) Ltd. (supra) and in Vishwa Mitter of Vijay Bharat Cigarette Stores, Dalhousie Road, Pathankot Vs. O.P. Poddar and Others, the Hon''ble Supreme Court held that Section 142 of the Negotiable Instruments Act provides that a complaint u/s 138 can be made by the payee or the holder in due course of the said cheque. The two complainants, in that case, are by the appellant company therein who is the payee of the two cheques and, therefore, competent to file the complaint. As such, the order quashing the complaint came, to be set aside. In Vishwa Miner v. O.P. Poddar (supra), the Hon''ble Supreme Court held that it is clear that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. It has also been held that no Court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. It has also been held that if any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, then the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the Statute. In that case of complaint u/s 138, the only eligibility criteria prescribed by Section 142 of the Act of 1881 is that the complaint must by the payee or the holder in due course and in that case, the criteria is satisfied as the complaint is in the name and on behalf of the appellant company in whose favour the cheque was issued.

In Shankar Finance and Investment''s case, the payee of the cheque is M/s. Shankar Finance and Investments. The complaint was filed by M/s. Shankar Finance and Investments a proprietary concern of Mr. Atmakuri Shanker Rao, represented by its Power of Attorney Holder Mr. Thamada Satyanarayana. The Hon''ble Apex Court held that it is, therefore, evident that the complaint is in the name of and on behalf of payee and once the complaint is in the name of payee and is in writing, the requirements of Section 142 are fulfilled.

In K. Gopalakrishnan v. Karunakaran represented by the Power of Attorney Holder (supra), the questions came to be considered by the Division Bench of Madras High Court as to whether the complaint filed by power of attorney holder should be signed by payee or holder in due course of cheque or shall be signed by the power of attorney holder on behalf of the complainant. While considering Section 2 of the Powers of Attorney Act, 1882, it was held that every person has a right to appoint an agent for any purpose except in cases where the act to be performed is personal in character or is annexed to a public office or an act involving fiduciary obligation. Apart from the above mentioned exceptions, the law is clear that whatever a person can do for himself, he can do it through an agent. In common law, when a person authorizes another to sign for him, the signature of the person so signing is to be treated as if the person authorizing signed the same. Unless the statute otherwise provides, an application or petition signed by the person authorised would be in order and valid. Section 2 of the Power of Attorney Act makes it clear that power of attorney can execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required by the authority of the donor of the power, and every instrument and any thing so executed and done, shall be effectual in law is if it had been executed or done by the donee of the power.

In Aashirwad Enterprises v. Sambhar Salts Ltd. (supra), while considering the provision of Section 142 of the Act of 1881, this Court held that the word "payee" in Section 142(1) includes such person as is authorized by the payee himself or itself to make the complaint on his behalf.

In Ajay Kumar Jain v. State of Rajasthan (supra), this Court held that complaint u/s 138 of the Act of 1881 can be presented by holder of power of attorney of complainant.

In Mohil Fibers v. Shri Saai Agro Industries and Anr. (supra), the Madhya Pradesh High Court held that a General Power of Attorney holder can file a complaint u/s 138 of the Act of 1881 on behalf of payee or holder in due course of the cheque.

In Smt. Lalita Hundiya v. Govind Narayan Khuteta and Anr. (supra) a complaint was filed by the power of attorney holder. In that case, the trial Court after examining the power of attorney holder took cognizance. That order came to be challenged by way of a criminal revision petition. The revisional Court while allowing the criminal revision, set aside the cognizance order holding that power of Attorney holder has no locus to file complaint u/s 138 of the Act of 1881. This Court further held that the complaint was not filed in accordance with the provisions of Section 142(a) of the Act of 1881 and the order of the trial Court quashing of the complaint was affirmed. The decision relied on by learned Counsel for the respondent, in my view, do not lead the correct law in view of the catena of decisions of Hon''ble Supreme Court referred hereinabove and is of no help to the respondent.

Keeping in view the decisions referred therein above and the facts of the instant case, in my view, the revisional Court fell in error in setting aside the order taking cognizance and issuing process. In the instant case, indisputably, the complaint u/s 138 of the Act of 1881 came to be filed in the name and on behalf of Mrs. Chandrika, the payee of the cheque through her husband the power of attorney holder and, therefore, the complaint was proper and valid and the learned Trial Court was justified in taking the cognizance of offence on such complaint. In the circumstances, therefore, the order of revisional Court suffers from patent error and deserves to be set aside.

Consequently, the criminal misc. petition is allowed. The order impugned dated 10.2.2005 passed by Additional Sessions Judge (Fast Track) No. 1, Bhilwara in criminal revision petition No. 77 of 2004 is hereby set aside and that of the order of the Additional Chief Judicial Magistrate, Bhilwara dated 29.4.2004 is restored. The parties are directed to appear before the trial Court on 24.8.2009 without any fresh notice and the trial Court shall proceed with the complaint case in accordance with law.