@JUDGMENTTAG-ORDER
P. Sathasivam, J.@mdashThe petitioner K. Gopalakrishnan, an accused in a case filed u/s 138 of the Negotiable Instrument Act for alleged
dishonouring of the cheque issued to the respondent herein on 05.07.2004, seeks to quash the said case in C.C. No. 93 of 2005 on the file of
Judicial Magistrate No. II, Chidambaram.
2. According to the petitioner, there is no legally enforceable debt for the issuance of the cheque in dispute. The other main contention of the
petitioner is that the complaint was preferred by the respondent herein, in violation of the guidelines issued by this Court in Y. Vijayalakshmi @
Rambha Vs. Manickam Narayanan, Proprietor, Seventh Channel Communications rep. by its Power of Attorney Agent, , wherein the learned
single Judge (S.R. Singharavelu, J.) has held that the complaint shall be signed by the payee himself and not by the Power of Attorney holder and
that the sworn statement of the complainant also shall be recorded by the Judicial Magistrate while taking cognizance of the offence u/s 138 of the
Negotiable Instruments Act. Relying on the said decision, the learned Counsel for the petitioner contended that the complaint was filed and signed
by the Power of Attorney and above all, the Power of Attorney entered the box and gave the sworn statement and hence, in the absence of
original complaint, the proceedings in C.C. No. 93 of 2005 are liable to be quashed.
3. When the above petition came up for hearing, M. Jeyapaul, J., on going through Section 142 of the Negotiable Instruments Act, Full Bench
decision of the Andhra Pradesh High Court in the case of K. Ramachandra Rao and Others Vs. State of A.P. and Another, as well as the
decisions of this Court in 1994 (1) L W 34 (Ruby Leather Exports etc., v. K. Venu, etc. (T.S. Arunachalam, J.), and 1997 (2) L W 637 B.
Mahenndra Jain v. C.K. Mohammed Ali (M. Karpagavinayagam,J.), unable to accept the view expressed by S.R. Singharavelu, J. in Y.
Vijayalakshmi @ Rambha Vs. Manickam Narayanan, Proprietor, Seventh Channel Communications rep. by its Power of Attorney Agent, , and
referred the matter to be decided by a Larger Bench. Accordingly, on orders of the Hon''ble Chief Justice, the above petition has been posted
before us.
3. Heard Mr. V. Bhiman, learned Counsel for the petitioner, Mr. S. Ashok Kumar, learned senior counsel as amicus curiae to assist the Court and
Mr. M. Babu Muthu Meeran, Additional Public Prosecutor.
4. The points raised in the order of reference dated 25.01.2006 made by M. Jeyapaul,J. are as follows:
1. Whether the complaint shall be signed by the power of attorney holder on behalf of the complainant?
2. Whether the production of affidavit of the complainant in proof of execution of the power of attorney in his favour is necessary?
3. Whether the sworn statement of the complainant is also required to be recorded on a future date on his appearance in the Court to enable the
Court to exercise its discretion under Sections 202 and 203 of the Code of Criminal Procedure?
5. Before considering the issues mentioned above, it is useful to refer the decision of S.R. Singharavelu, J. in Y. Vijayalakshmi @ Rambha Vs.
Manickam Narayanan, Proprietor, Seventh Channel Communications rep. by its Power of Attorney Agent, . The question that was raised before
the learned Judge is as to whether a complaint u/s 138 of Negotiable Instruments Act, 1881, can be filed by a Power of Attorney? The learned
Judge, after referring Section 142 of the Negotiable Instruments Act, and various decisions relating to Powers of Attorney Act, 1882, in
connection with said provision, has concluded that complaint can be presented by General Power of Attorney on behalf of the payee, provided,
(i) the complaint shall be signed by the payee himself;
(ii) there shall be also an affidavit of the complainant in proof of his execution of General Power of Attorney; added to the production of the said
Power of Attorney document;
(iii)sworn statement of General Power of Attorney can be recorded on the date of presentation of the complaint;
(iv)sworn statement of payee (complainant) shall have to be taken in a future date on his appearance in Court; the Magistrate shall thoroughly
examine the statements of General Power of Attorney holder as well as the original complaint and documents produced before him and exercise
his discretion vested under Sections 202 and 203 of Cr.P.C.
6. In the present case, i.e., in Crl.O.P. No. 350 of 2006, even at the time of preliminary hearing for admission, the learned Counsel for the
petitioner relied upon the above referred decision of S.R. Singharavelu,J. Y. Vijayalakshmi @ Rambha Vs. Manickam Narayanan, Proprietor,
Seventh Channel Communications rep. by its Power of Attorney Agent, and contended that issuance of summon to the petitioner is not in
accordance with law. M. Jeyapaul,J. who heard the above petition, not agreeing with the decision in Y. Vijayalakshmi @ Rambha Vs. Manickam
Narayanan, Proprietor, Seventh Channel Communications rep. by its Power of Attorney Agent, , referred the case to a Larger Bench.
7. In order to find out an answer to the issues raised, it is useful to refer the following provisions of Criminal Procedure Code, Negotiable
Instruments Act, 1881 and the Powers of Attorney Act, 1882.
Section 2(d) of Cr.P.C. defines Complaint.
complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person,
whether known or unknown, has committed an offence, but does not include a police report.
Section 190 of Cr.P.C. deals with Cognizance of offences by Magistrates:
(1)Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this
behalf under Sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) ...
Section 200 of Cr.P.C. speaks about Examination of complainant.-
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the
substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate....
Section 142 of the Negotiable Instruments Act, 1881 speaks about Cognisance of offences.
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -
(a) no court shall take cognisance 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;
...
Section 2 of the Powers of Attorney Act, 1882 speaks about Execution under power-of-attorney.-
The donee of a power-of-attorney may, if he thinks fit, 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 thing so executed and done, shall be as
effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.
This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force.
8. As rightly argued by Mr. S. Ashok Kumar, learned senior counsel that the term ''complainant'' is not defined either in the Code of Criminal
Procedure or in Powers of Attorney Act. Therefore, for the purpose of Section 200 Cr.P.C. complainant should be taken to mean a person who
presents a complaint to the Court or who makes a compliant to the Court. When a complaint is presented before the Magistrate, he can take
cognizance of the offence u/s 200 of Cr.P.C. and then has to examine the complainant upon oath and the substance of such examination should be
reduced to writing and shall be signed by the complainant. At this stage, following courses are open to the Magistrate to proceed further,
(i) If on such examination of the complaint and the statement of the complainant and the witnesses, if any, and if he is of the opinion that the
evidence adduced at that stage has materials to proceed without there is need for further enquiry, the Magistrate can proceed to issue process u/s
204 of the Code.
(ii) If the Magistrate on such examination of the complainant the complaint and the witnesses, if any, and does not want to postpone the issuance of
process and if he comes to the conclusion that the materials adduced at that stage has not made out sufficient grounds for proceeding, he can
dismiss the complaint u/s 203 of Cr.P.C. and
(iii) If the Magistrate on receipt of the complaint if he thinks fit and desires further enquiry with the case he may do so. In that process after such
enquiry by Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint u/s 203 of Cr.P.C.
A careful analysis of the above provisions show that at none of the stages the Code has provided for hearing the accused, because this is only a
preliminary stage and hearing the accused would arise at subsequent stage.
9. The first issue before us is, whether the complaint u/s 138 of Negotiable Instruments Act when presented by the Power of Attorney can be
signed by him on behalf of the complainant? 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 authorises
another to sign for him, the signature of the person so signing is to be treated as if the person authorising signed the same. Unless the statute
otherwise provides, an application or petition signed by the person authorised would be in order and valid. The above ratio is laid down in Ravula
Subba Rao and Another Vs. The Commissioner of Income Tax, Madras, . The following conclusion of their Lordships in paragraph 15 is relevant.
15. Then, there is the contention of the appellant that the Rules in question are repugnant to Section 2, Powers of Attorney Act, 7 of 1882, and are
therefore ultra virus. In addition to the reasons given above in support of the conclusion that the rule of the common law was not intended to
operate in the field occupied by Section 26-A, there is a further and a more compelling reason why this contention should not be accepted. It is
that there is, in fact, no conflict between the two statutory provisions.
To understand the scope of Section 2, Powers-of-Attorney Act, it is necessary to refer to the history of this legislation. Under the common law of
England, an agent having authority to execute an instrument must sign in the name of the principal if he is to be bound. If the agent signs the deed in
his name albeit as agent, he is the person who is regarded as party to the document and not the principal. It is the agent alone that can enforce the
deed, and it is he that will be liable on it. Vide In re International Contract Co. (1871) 6 Ch A 525; Schack v. Antony (1813) 1 M & S 573 : 105
E R 214 (1), Halsbury''s Laws of England, Edn.3,Vol 1, p.217, and Bowstead on Agency, Edn.10,p.93. To remove the hardships resulting from
this state of the law, the Conveyancing and Law of Property Act, 1881 (44 and 45, Vict.Chap.41) enacted Section 46, which is as follows:
(1) The donee of a power of attorney may, if he thinks fit,execute or do any assurance, 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 assurance, instrument, and thing so executed and
done shall be as effectual in law, to all intents, as if it had been executed or done by the donee of the power in the name and with the signature and
seal of the donor thereof.
2. This section applies to powers of attorney created by instruments executed either before or after the commencement of this Act.
The Indian Legislature immediately followed suit, and enacted the Powers-of-Attorney Act 7 of 1882 incorporating in Section 2 therein word for
word, Section 46 of the English Act. The object of this section is to effectuate instruments executed by an agent but not in accordance with the rule
of the common law and the enactment is more procedural than substantive. It does not confer on a person a right to act through agents. It
presupposes that the agent has the authority to act on behalf of the principal, and protects acts done by him in exercise of that authority, but in his
own name.
10. Section 2 of Powers of Attorney Act, 1882 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 thing so
executed and done, shall be effectual in law as if it had been executed or done by the donee of the power. The scope of the above section has
been explained in the above referred decision Ravula Subba Rao and Another Vs. The Commissioner of Income Tax, Madras, . From the careful
reading of the above provision of the Act as well as the observation of the Hon''ble Supreme Court, it can safely be concluded that a complaint
signed by the Power of Attorney in his name, though not on behalf of the complainant, is maintainable and valid in law. Therefore, the Power of
Attorney has the authority to act on behalf of the principal and the acts done by him in exercise of that authority are protected even if done in his
own name. In the light of the above principle, the complaint even if not signed by the power of attorney on behalf of the complainant but signed in
his own name is maintainable and not bad in law, because it is more procedural than substantive.
11. Coming to the second issue raised, viz., whether the production of affidavit of the complainant in proof of execution of the Power of Attorney
in his favour is necessary? As discussed earlier, the filing of a complaint before the Magistrate is more procedural than substantive. In Ruby Leather
Exports etc., v. K. Venu reported in 1994 (1) L.W.34, T.S. Arunachalam,J. had an occasion to consider a similar issue. The question that was
raised in a batch of petitions before the learned Judge reads as follows:
15. ...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 u/s 142(a) of the Negotiable Instruments Act to facilitate valid cognisance being taken by the Magistrate?
After analysing the issue in depth, the learned Judge held that a Power of Attorney holder of the payee or the holder in due course of the cheque,
will be competent to make a complaint. The learned Judge further held that this verdict of competency of a Power of Attorney, to prefer a
complaint on behalf of the payee or holder in due course of the cheque, to be taken cognizance of, will not preclude the accused from raising any
valid defence open to them under law, including the validity of the power of attorney. The learned Judge has concluded that,
29. ...Once there cannot be any doubt, that the Power of Attorney agent is virtually the payee himself or the holder in due course, it cannot be
construed, that the act of filing a complaint, by a Power of Attorney, is done in a way not contemplated by Section 142(a) of the Act. It will not be
possible to hold, on the analogy of Section 141 of the Act, which refers to offences by companies, that such of those persons contemplated therein
will also be competent to file complaints, when the statute is silent on that aspect. If a Power of Attorney Agent can act instead of an individual
payee or a holder in due course, it will equally be competent for a power of attorney agent of a company, explained u/s 141 of the Act, meaning
any body corporation including a firm or other association of individuals, to file a complaint on behalf of the company.
30. The answer to the question posed, is that 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 u/s 142(a) of the Negotiable Instruments Act, to facilitate valid cognisance 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.
This verdict of competency of a power of attorney, to prefer a complaint on behalf of the payee or holder in due course of the cheque, to be taken
cognizance of, will not preclude the accused from raising any valid defence open to them under law, including the validity of the power of
attorney....
12. In Y. Sreelatha @ Roja v. Mukanchand Bhothra reported in 2002 (1) C.T.C. 530, M. Karpagavinayagam, J. has held that only when the
validity of the Power of Attorney is questioned, the Court could be called upon to decide the genuineness of the validity of the Power of Attorney.
Before the learned Judge, among the several contentions raised, the first contention reads as under:
5. (i) The complainant, instead of filing the complaint directly, has filed the complaint through Power of Attorney. The Power of Attorney holder is
not competent to speak about the transaction that took place between the payee and the drawer of the cheques. Further, the document for the
power of attorney was not filed.
In paragraphs 12 and 13, the learned Judge answered the said point, as under:
12. Regarding the first point relating to filing of the complaint through the power of attorney, it is to be stated that during the course of trial, the
validity of the cognisance on the basis of the sworn statement of the power of attorney holder was not questioned.
13.Furthermore, there is no law, which prohibits filing of the complaint through power of attorney either on behalf of the individual or on behalf of
the company. Only when the validity of the power of attorney is questioned, the Court could be called upon to decide the genuineness or the
validity of the power of attorney.
13. In the case of M.M.T.C. Ltd., v. Medchl Chemicals Pharma (P) Ltd. reported in 2002 C L J 266, the Hon''ble Supreme Court has held that,
merely because complaint is signed and presented by a person, who is neither as authorised agent, nor a person empowered under the Articles of
Association or by any resolution of the board to do so is no ground to quash the complaint. The Court further held that even presuming that initially
there was no authority still the company can, at any stage rectify the defect. At a subsequent stage the company can depute the person who is
competent to represent the company. It is therefore clear that even though the General Power of Attorney at initial stage failed to produce the deed
of power of attorney or the affidavit of the complainant in proof of execution of power of attorney, the same can be rectified by producing the
same at a later stage of the proceedings as and when the validity of the power of attorney is questioned by the accused and the Court could then
be called upon to decide the genuineness or the validity of the power of attorney.
14. Coming to the third issue referred to the Bench, viz., Whether the sworn statement of the complainant is also required to be recorded on a
future date on his appearance in the Court to enable the Court to exercise its discretion under Sections 202 and 203 of the Code of Criminal
Procedure, as pointed out earlier, Sections 200 to 204 of the Code of Criminal Procedure prescribes the procedure to be followed while taking
cognizance of the offence. A person who physically presents the complaint is deemed to be the complainant. Once the person presents the
complaint to the Court, the Magistrate examines the complainant upon oath, reduced to writing the substance of such examination and shall be
signed by the complainant and thereupon the Magistrate proceeds further. The person who presents the complaint may either be the complainant
himself or his Power of Attorney holder. Therefore, the examination of the Power of Attorney holder upon oath at the time of presentation of the
complaint and reduced to writing the substance of such examination of the Power of Attorney holder shall be sufficient compliance of the
procedure contemplated under the Code. We are of the view that the actual complainant is also to be examined on oath on his appearance on a
future date before the Magistrate is unwarranted and unnecessary. If the examination of the complainant on oath at a future date to enable the
Magistrate to exercise his discretion u/s 202 or 203 of the Code is necessary, then, as rightly pointed out by the learned senior counsel, there will
be no need or necessity for the Power of Attorney to file the complaint on behalf of the principal. By requiring the complainant also to be examined
upon oath on a future date would only be an additional burden to the Magistrates and therefore, is not warranted. That upon, examination of the
Power of Attorney u/s 200 Cr.P.C., the Magistrate first proceeds with the issue of summons u/s 204 Cr.P.C. and thereafter calls upon the original
complainant to be examined upon oath would amount to going back to the square one and therefore is impermissible. Such examination of the
complainant on a future date to enable the Court to exercise its discretion would run counter to the scheme of the Code which has not provided for
review and prohibits interference at interlocutory stages. This is evident from the decision of the apex court in the case of Adalat Prasad Vs.
Rooplal Jindal and Others, .
15. Once the Power of Attorney agent makes the complaint, for all practical purposes, it is for the payee or holder in due course of the cheque and
the Power of Attorney agent steps into the shoes of the payee or holder in due course of the cheque. Further, as held by the Supreme Court in
Ravulu Subba Rao''s case (cited supra), with regard to the scope of Section 2 of the Powers of Attorney Act, whatever the person can do himself,
he can do through an agent and when a person authorises another to sign for him, the signature of the person so signing is the signature of the
person authorising it. In the light of the above discussion, we are of the view that it is not required to record the sworn affidavit of the complainant
also on a future date to enable the Court to exercise its discretion.
16. Mr. V. Bhiman, learned Counsel for the petitioner by placing reliance on Sections 2(q) and 303 of the Code of Criminal Procedure and Order
III Rule 2 of CPC argued that the Power of Attorney holder cannot become a witness on behalf of the party. The learned Counsel relied upon the
decisions in the case of Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and Others, and T.C. Mathai and Anr. v. District and
Sessions Judge, Thiruvananthapuram, Kerala reported in 1999 SCC 455. In Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and
Others, , the Apex Court has held that the General Power of Attorney can appear, plead and represent on behalf of the party, but he cannot
become a witness on behalf of the party. In the latter case reported in 1999 SCC 455, the Apex Court approving the view of this Court reported
in AIR 1937 Mad. 37 (M. Krishnammal v. T. Balasubramania Pillai), held that an agent cannot become a ''pleader'' in the criminal proceedings,
unless the party seeks permission from the Court to appoint him to act in such proceedings. The Full Bench decision referred to by the Apex Court
has laid down that an agent with a Power of Attorney to appear and conduct judicial proceedings, but who has not been so authorised by the High
Court, has no right of audience on behalf of the principal. However, the issues decided in the decisions cited supra relate to subsequent stage of the
proceedings and not with reference to initiation of proceedings and therefore, they may not be relevant at this stage.
17. In view of the above discussion, we hold that,
(i) With regard to the first issue, the complaint even if not signed by the power of attorney on behalf of the complainant but signed in his own name,
is maintainable and not bad in law because it is more procedural than substantive;
(ii) regarding the second issue, though the General Power of Attorney at initial stage fails to produce the deed of power of attorney or the affidavit
of the complainant in proof of execution of power of attorney, the same can be rectified by producing the same at a subsequent stage of the
proceedings as and when the validity of the power of attorney is questioned by the accused and the Court could then be called upon to decide the
genuineness or the validity of the power of attorney; and
(iii) in respect of third issue, it is not required to record the sworn affidavit of the complainant also on a future date to enable the Court to exercise
its discretion.
18. At our request, Mr. S. Ashok Kumar, learned senior counsel readily accepted to act as Amicus Curiae, we place on record our appreciation
for the valuable assistance rendered by him.
Post the Criminal O.P., before the concerned learned Judge to decide the same on merits.
