9911796707
TMI Blog2000 (3) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... by the complainant, who is the second respondent in Crl. M. C. No. 2719 of 1999 and the first respondent in Crl. M. C. No. 3383 of 1999, the petitioner is standing trial for the offence punishable under Section 138 of the Negotiable Instruments Act before the Judicial First Class Magistrate's Court-V, Thiruvananthapurm and Chief Judicial Magistrate's Court, Thiruvananthapuram, respectively. Annexure A is the copy of the notice sent by the complainant intimating the petitioner about the dishonour of the cheques and calling upon him to pay the amount. 3. The petitioner has contended that annexure A notice sent on behalf of the drawee of the cheque is not in conformity with proviso (b) to Section 138 of the Negotiable Instruments A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts Act. In annexure A notice the drawer of the cheque, the petitioner herein is called upon to pay the cheque amount within 15 days from the date of receipt of the notice. Therefore, annexure A notice is perfectly in compliance with proviso (b) to Section 138 of the Negotiable Instruments Act. Therefore, this contention raised by the petitioner is absolutely unsustainable. 4. The next contention raised by the petitioner is that annexure A notice is issued not by the payee or the holder in due course as stipulated in proviso (b) to Section 138 of the Negotiable Instruments Act and it is issued by the advocate on instructions given by the power of attorney holder of the payee of the cheque. Therefore, according to the petitioner, annexure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the power of attorney holder of the payee is entitled to act on behalf of the payee under Section 27 of the Negotiable Instruments Act with the only limitation that he can accept or endorse a bill of exchange only with the specific agency in that behalf. Therefore, the contention of the petitioner that the notice issued in this case is invalid since the instruction to issue the notice is not given by the payee himself but given by his power of attorney holder, is not at all sustainable. 7. The judgment passed by a single judge of this court in P.K. Koya Moideen v. G. Hariharan [1996] 86 Comp Cas 399(HR) : [1996] 1 KLT 389 holding that the executor of the will cannot be treated as the holder in due course and he cannot file a complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The further contention raised by the petitioner is that the power of attorney holder being the agent of the principal cannot further delegate the power delegated to him by the principal and, therefore, the notice issued by the advocate on the instruction given by the power of attorney holder is illegal and invalid, is also absolutely unsustainable. The power of attorney holder has only given instructions to counsel to send the registered notice and to prepare the complaint as the agent of the principal. The advocate has issued the notice and preferred the complaint before the court not as agent of the person who gave instructions to send the notice or prepare the complaint, but as a pleader of that person as empowered under Section 30 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. Section 138 or 142 of the Negotiable Instruments Act does not contain a similar provision as in Section 198 or 199 of the Criminal Procedure Code debarring the court from taking cognizance of certain offences except upon a complaint made by some person aggrieved by 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 case may be, the holder in due course of the cheque, notwithstanding anything contai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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