Andhra HC (Pre-Telangana)
Payyati Savitri Devi vs Malireddy Damayanthamma And Anr. on 21 April, 1997
Equivalent citations: [1998]93COMPCAS958(AP)
JUDGMENT Krishna Saran Shrivastav, J.
1. This revision is directed against the order passed by the 1st Class Magistrate, Gudivada, whereby the objection of the petitioner that the complaint be dismissed being not maintainable has been rejected.
2. Under section 138 of the Negotiable Instruments Act, 1881, the complaint has been filed by Smt. M. Damayanthamma through her authorised agent, Sri Malireddy Satyanarayana Reddy, who is holding the registered general power of attorney executed by the complainant in his favour authorising him to recover all her debts. It is alleged in the complaint that the complainant is an aged woman of about 60 years and is keeping indifferent health. Malireddy Satyanarayana Reddy is the nephew of the complainant-first respondent.
3. The petitioner-accused before starting cross-examination of PW-1 filed an objection alleging that the complaint is not maintainable because it has been signed and filed by the person holding the general power of attorney of the complainant. This objection has been rejected.
4. Feeling aggrieved by the impugned order, this revision has been preferred.
5. In the case of Manimekalai v. Chapaldas Kalyanji Sanghvi [1995] Crl. LJ 1102, it is held that complaint can be filed for an offence under section 138 of the Negotiable Instruments Act, 1881, through the person holding a power of attorney. Under section 198 of the Criminal Procedure Code, 1973, it is provided that no court shall take cognisance of any offence punishable under Chapter XX of the Indian Penal Code, 1860, except upon a complaint made by some person aggrieved by the offence and it is mentioned in the proviso that under certain circumstances, the complaint can be lodged by persons named in it. Similarly, persons have been named who can institute the complaint under section 198A of the Criminal Procedure Code, 1973, for an offence under section 498A of the Indian Penal Code, 1860, and under section 199 of the Criminal Procedure Code, 1973, for an offence under section 500 of the Indian Penal Code, 1860. There is no provision in the Code of Criminal Procedure, which forbids filing of the complaint for committing other offences either under the Indian Penal Code, or under any other law except sections 198, 198A and 199 of the Code of Criminal Procedure, 1973, as provided under these sections.
6. The case of Abhyoyeswari v. Kishori Mohan Banerjee, AIR 1914 Cal 479, is distinguishable on the facts because a general power of attorney was given to the complainant therein for presentation of criminal complaints. Thus, it appears that for committing any offence, a blanket power of attorney had been given and under these circumstances, the Division Bench of the Calcutta High Court has held that in the absence of a specific power of attorney, the complaint for defamation cannot be filed. As noted above, a complaint under section 500 of the Indian Penal Code, 1860, can be filed by a person as mentioned under section 199 of the Code of Criminal Procedure, 1973. Similarly, the case of P. K. Koya Moideen v. G. Hariharan [1996] 86 Comp Cas 399; [1966] 4 Crimes 434 (Ker) is also distinguishable on the facts. The reason is that, on the strength of a will alleged to have been executed by the father of the complainant, a complaint was filed under section 138 of the Negotiable Instruments Act, 1881, but the will was not filed and it was alleged that the will was not genuine. Under these circumstances, the learned single judge of the Kerala High Court has held that without an adjudication regarding the validity of the will, the petitioner-accused could not be prosecuted. The learned single judge of the Kerala High Court has not observed that a person holding a power of attorney is incompetent to institute a complaint under section 138 of the Negotiable Instruments Act, 1881.
7. For the foregoing reasons, the order of the lower court cannot be faulted with.
8. No other or further point has been raised on behalf of the petitioner and, therefore, the revision, being devoid of substance, is hereby dismissed.