Karnataka High Court
Rajeev Indani vs D. Veerendra Heggade on 22 February, 2001
Equivalent citations: ILR2001KAR4987, 2001(5)KARLJ449, 2001 AIR - KANT. H. C. R. 1213, (2001) 3 RECCRIR 134, (2001) 105 COMCAS 774, (2001) 4 ALLCRILR 693, (2001) 5 KANT LJ 449, (2001) 2 CIVILCOURTC 586, (2001) 2 BANKCAS 761
Author: K.R. Prasad Rao
Bench: K.R. Prasad Rao
ORDER
The Court
1. This petition is filed under Section 482 of the Cr. P.C. by the accused in C.C. No. 25389 of 1998 on the file of the Court of the XI Additional Metropolitan Magistrate, Mayohall, Bangalore, seeking for quashing the above case registered against him by the order dated 6-10-1998 passed by the said Court.
2. On the complaint filed by the respondent represented by his power of attorney against the petitioner for the offence under Section 138 of the Negotiable Instruments Act, 1988 (for short, 'the Act'), the Trial Court has taken cognizance of the offence and thereafter, recorded the sworn statement of the special power of attorney holder of the respondent and passed the impugned order dated 6-10-1998 ordering for registering the case against the petitioner for the offence under Section 138 of the Act. The said order is now challenged by the accused in the present proceedings.
3. The learned Counsel for the petitioner vehemently contended that the complaint filed by the special power of attorney of the respondent in respect of the offence under Section 138 of the Act, is not maintainable in view of the mandatory provisions of Section 142 of the Act that 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, notwithstanding anything contained in the ambit of the Code of Criminal Procedure, 1973. It is further contended by him that the notice of dishonour of the cheque issued by the petitioner, was given to him on 7-5-1998 though the intimation regarding the dishonour of the cheque has been received by the respondent on 22-4-1998. According to him, the said notice is not given within 15 days from the date on which the intimation of the dishonour of the cheque has been received by the respondent and on this ground also, the complaint filed by the respondent is not maintainable.
4. In reply to these submissions, the learned Counsel for the respondent submitted that there is no specific bar under the provisions of Section 142 of the Act for filing a complaint by the special power of attorney of the respondent (i.e.), the payee or the holder in due course of the cheque. He, therefore, contended that the complaint filed by the special power of attorney of the respondent, who is the payee of the cheque in question, on his behalf is maintainable. In support of this contention, he relied upon a decision of the Supreme Court rendered in the case of Vishwa Mitter v O.P. Poddar and Others, wherein it was held that--
"Where a complaint was filed by the constituted attorney of owners of registered trademark, alleging commission of offence of infringement of trademark owned by the principal by the accused under Sections 78 and 79 of Trade and Merchandise Marks Act, 1958 and Section 420 of the IPC, the complaint is maintainable and the dismissal of the complaint on the sole ground that the complainant not being the registered owner of the trademark, he was not competent to file the complaint would be illegal".
Placing reliance on the above decision, he submitted that the complaint filed by the special power of attorney of the respondent on behalf of the respondent, is clearly maintainable. In support of this contention, he also relied upon a decision of the Kerala High Court rendered in the case of Pandalai v Jacob C. Alexander and Another, wherein it was held that--
"Attorney holder of payee is entitled to act under Section 27 of the Negotiable Instruments Act and the notice issued by him is valid and the complaint is maintainable".
In the same decision, at page 477, a reference has been made to a decision of the same High Court in the case of Hamsa v Ibrahim, wherein, a Single Judge of the same High Court has held that a power of attorney of a payee or holder in due course can make a complaint under Section 142 of the Negotiable Instruments Act. In para 12 of the same decision it has been observed as follows.--
"It is true that with regard to the matters which are in the special or personal knowledge of the principal he himself has to disclose that fact before the Court and his power of attorney is incompetent to state anything before the Court regarding those matters. But, what are the matters in the special or personal knowledge of the principal which he alone can disclose before the Court and not by his power of attorney are matters to be decided by the Court. Giving instructions to send the registered notice or to prefer a suit or complaint or other proceedings on behalf of his principal cannot be construed as matters which are in the special or personal knowledge of the principal which cannot be disclosed by his power of attorney".
In para 13 of the same decision, it is observed as follows.--
"Section 138 or 142 of the Negotiable Instruments Act does not contain a similar provision as in Section 198 or 199 of the Cr. P.C., debarring the Court from taking cognizance of certain offences except upon a complaint made by same person aggrieved of the offence concerned, section 142 of the Negotiable Instruments Act only lays down that cognizance of the offence punishable under Section 138 can be taken by a Court only upon a complaint in writing made by the payee or, as the ease may be, the holder in due course of the cheque, notwithstanding anything contained in the Code of Criminal Procedure".
In view of the law laid down by the Hon'ble Supreme Court and the view taken by the Kerala High Court, with which I respectfully agree, I hold that a duly constituted power of attorney of the respondent is entitled to file the complaint on behalf of the respondent under Section 142 of the Act. There is no specific bar under the provisions of Section 142 of the Act that a duly constituted power of attorney of the payee or the holder in due course of the cheque, is not entitled to maintain a complaint on behalf of the payee or the holder in due course of the cheque. I am, therefore, unable to accept the contention of the learned Counsel for the petitioner that the complaint filed by the special power of attorney of the respondent is not maintainable.
5. Regarding the merits of the second contention urged by the learned Counsel for the petitioner, I find it necessary to refer to the provisions of Section 138, sub-clause (b) to the proviso which reads as under.--
"Provided that nothing contained in this section shall apply unless the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid".
According to the facts alleged in the complaint, intimation regarding dishonour of the cheque was received by the respondent from his bankers on 22-4-1998, the period of 15 days for issuing of notice to the petitioner, who is a drawer of the cheque to make payment of the cheque amount is to be counted from 23-4-1998. If it is so counted, the notice issued on 7-5-1998 by the respondent to the petitioner falls within the time-limit of 15 days from receiving the said notice. I am therefore, unable to accept the contention of the learned Counsel for the petitioner that the said notice issued is not a valid notice.
6. For the above reasons, I find that there are no justifiable grounds to quash the above proceedings registered against the petitioner in C.C. No. 25389 of 1998.
This petition is therefore, dismissed. However, it is open to the petitioner to raise the contention before the Trial Court that the power of attorney executed does not empower respondent to file the complaint or to give evidence, on production of the said power of attorney, if it does not contain any such specific authorisation before the Trial Court.