9911796707
TMI Blog1999 (10) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... one month. He further ordered that a sum of ₹ 9,000/-, out of the said fine shall be paid as compensation to the complainant/respondent No. 1. The petitioner challenges the said order of conviction and sentence in this revision. 2. The only point which was argued before the Sessions Judge was that whether a complaint could be filed by Power of Attorney in view of Section 142 of the Act and whether the Power of Attorney could give evidence on behalf of the complainant? The same point has been urged before me by learned Advocate for the petitioner. 3. Learned Advocate for the petitioner states that though there are rulings of various High Courts on the question that a complaint could be filed in view of Section 142 of the said Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal Procedures, 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; (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. I shall first refer to the pronouncement of various High Courts on the question posed and which is required to be decided in this revision. 7. In Hamsa v. Ibrahim (supra), it has been held that a Power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or that the act to be performed is annexed to a public office, or to an office involving fiduciary obligations. But apart from such exceptions the law is well settled that whatever a person can do himself, he can do through an agent. 9. The Madras High Court in Manimekalai v. Chapaldas Kalyanji Sanghvi, 1995 Cri.L.J. 1102, has laid down that the payee represented by the Power of Attorney can very well file a complaint for offence under Section 138 of the said Act. In Smt. Payyati Savitri Devi v. Malireddy Damayantamma and Anr., II (1999) BC 561=1997 Cri.L.J. 3862, the Andhra Pradesh High Court has laid down that a complaint under Section 138 of the said Act can be filed by a person holding Power of Attorney of the complainant. 10. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Attorney to appear, act or make applications on behalf of such parties. This, obviously, does not include power to depose on behalf of the party who gives such Power of Attorney. Nevertheless, such Power of Attorney can appear as a witness for the party and depose in respect of the facts which are within his knowledge and on the basis of the record on which reliance is placed in the matter. Therefore, there is no bar for the Power of Attorney to act as a witness in a complaint filed on the basis of Power of Attorney given to him by the complainant. I am supported in this view taken by me by ajudgment of Rajasthan High Court, to which my attention has been drawn by learned Advocate for the petitioner. In Ram Prasad v. Hari Narain and Ors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the commission of the offence. Nevertheless, Section 142 of the said Act lays down that no cognizance of the offence under Section 138 of the said Act shall be taken, except on a complaint of payee or holder in due course. Section 142 of the said Act does not contemplate that the complaint should be personally filed by the complainant. The complainant can appoint a Power of Attorney for filing the complaint in view of Section 142 of the said Act. However, neither Code of Criminal Procedure nor the said Act contemplates that anyone can depose for and on behalf of the complainant. In such complaint, the Power of Attorney is entitled to appear as a witness and depose in respect of facts which are within his knowledge and on the basis of record ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
