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TMI Blog1997 (10) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... aint is lodged by the said G. L. Shah and the said complaint was filed and signed by his power of attorney holder, namely, Anil G. Shah. It was the allegation of the complainant in the complaint that the respondent had taken loans from time to time and towards the said loan, he was owing ₹ 1,47,600 (the learned advocate for the revision applicant says that there is a typing mistake in the complaint and the amount is ₹ 14,76,000 and that necessary application would be filed before the learned Metropolitan Magistrate to correct the said typing mistake). The cheque which is produced along with the complaint clearly shows that the amount is ₹ 14,76,000. Towards the said amount of ₹ 14,76,000 the respondent had given cheque, bearing No. 613783, dated February 1, 1994, drawn on Canara Bank, Bombay. When the said cheque was presented by the complainant for its realisation, it was returned on May 20, 1994, with an endorsement funds insufficient . Thereafter, the complainant had issued the legal notice as contemplated by section 138(b) of the Act on May 13, 1994. In spite of the service of the said legal notice, as there was no payment of the amount of the cheque, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplated under section 142 of the Act and in all those cases, other High Courts have found that such a complaint was a legal and valid complaint and cognizance of the same could be taken under section 142 of the Act. But from the order of the learned Sessions judge, it seems that he has not at all considered all those cases cited before him in the proper context and has not at all tried to distinguish the said cases and to show as to how they were not applicable. He merely negatived the said contentions of the learned advocate for the revision applicant before me and has come to the conclusion that as the complaint was not filed by the payee of the cheque, the learned Metropolitan Magistrate was not justified in taking cognizance of the same. He, therefore, allowed the said revision application and released the accused under the provisions of section 258 of the Code of Criminal Procedure. 6. Feeling aggrieved by the said decision, the original complainant has come before this court. 7. Before going into the details of the controversy which is raised before me, it is necessary to mention here certain admitted facts. There is no dispute about the fact that the present resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 9. If the above provision of sub-section (2) is considered then it would be quite clear that in view of the provisions of the said section, an act committed by the holder of the power of attorney would be presumed to be an act committed by the person who gives power Of attorney. Therefore, in view of this specific provision of section 2 of the Powers of Attorney Act, 1882, it would have to be presumed as per law that the complaint lodged by the power of attorney holder is a complaint lodged by the payee. The learned advocate for the respondent Mr. Hasurkar vehemently urged before me that section 142(a) of the Act does not incorporate that the court should take cognizance of the complaint lodged by the payee's power of attorney holder and, therefore, the court cannot hold that the power of attorney holder's act is an act of the payee. He further contended before me that if this court holds that the power of attorney can lodge a complaint then this court would be legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. A 'power of attorney' is the instrument by which a person is authorised 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 Ramdeo v. Lalu Natha, AIR 1937 Nag 65. Section 2 of the Powers of Attorney Act, 1882, empowers the donee of the 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' (shorn of the words which are not necessary in this context). In the light of such declarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed by the payee personally. When section 142 itself does not specifically say that the complaint must be lodged by the complainant personally and when it is also not a case of a public officer lodging the complaint, the lodging of the complaint by the power of attorney holder of the payee could not be said to be illegal or invalid. The learned Sessions judge has not properly considered the decision of this court reported in (Dipendra G. Choksi v. Kailashchandra C. Dhoot [1995] 1 GLR 424), in its proper context. It seems that he has been misled by the mere headnote and he has not gone through the said decision. The following observations in the said judgment would clearly show that the said judgment is not applicable to the facts of the case before me. 14. The learned advocate for the respondent has drawn my attention to the following commentary in Broom's Legal Maxims, 10th edition, page 360 : It is then true that, 'when the words of a law extend not to an inconvenience rarely happening, but do to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended qua frequentius a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant in limine which order is equally unsustainable and must be set aside. 16. Therefore, in view of the above discussion, I hold that the learned Sessions judge was not at all justified in interfering with the order passed by the learned Metropolitan Magistrate by allowing the revision application filed by the respondent and in view of the above discussion, it would be quite clear that his conclusion that cognizance of the; complaint ought not to have been taken in view of the provisions of section 142 of the Negotiable Instruments Act is erroneous and the same deserves to be interfered with by exercising revisional jurisdiction. 17. The next contention which is raised on behalf of the respondent is also of a technical nature. It is urged on behalf of the respondent that after lodging of the complaint, the original complainant, G. L. Shah, has died. G. L. Shah died on August 20, 1994. The complaint in this case was lodged on July 7, 19.94. The learned Metropolitan Magistrate has issued process against the respondent on the same day, i.e., on July 7, 1994. Once the learned Metropolitan Magistrate issues process, it is quite obvious that he has taken cognizance of the offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned advocate for the respondent has vehemently urged before me that till today, no application is filed by the heirs and legal representatives of the original complainant to bring them on record. But when the learned Session judges has already passed an order dismissing the complaint under section 258 and when the matter was pending in the higher forum, it was not possible for the heirs of the original complainant to move the Metropolitan Magistrate. They would be at liberty to take appropriate steps in view of the decision taken by this court today. 18. Thus, I hold that the present revision application will have to be allowed and the order passed by the learned Sessions judge in Criminal Revision Application No. 296 of 1996 will have to be set aside and the Criminal Case No. 2203 of 1994 will have to be restored to file and the learned Metropolitan Magistrate should proceed to deal with the said criminal case according to law and pass an appropriate order on the application that may be filed before him by the legal heirs of the deceased complainant. In view of the fact that the complaint is lodged in the year 1994, the learned Magistrate should give priority to this case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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