9911796707
TMI Blog2025 (1) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of the contents of the complaint, documents in support thereof and the affidavit submitted in support of the complaint. If an affidavit is filed in support of the complaint, before issuance of the process under Section 200 of the Cr.P.C, the Magistrate has a discretion and is not bound to call upon the complainant to be examined to decide whether or not to issue process on the complaint under Section 138 of the NI Act. The Magistrate can rely upon the affidavit filed in support of the complaint under Section 138 of the NI Act. In the instant case, the petition to quash the complaint was filed immediately after the summons was served on the accused. Neither the complainant nor the power of attorney holder has been examined. Summo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ISHA SRI.SALAHUDEEN AYOOBI T. A. ORDER The competence of a power of attorney holder to file a complaint under section 138 of the Negotiable Instruments Act, 1881 (for short the 'NI Act'), in the absence of any averment in the complaint about the power of attorney holder's knowledge of the facts of the case, arises for consideration. 2. Petitioner is the accused in C.C. No.1783/2021 on the files of the Judicial First Class Magistrate's Court-XII, Thiruvananthapuram. The first respondent instituted a complaint alleging dishonour of a cheque issued to him and consequential refusal to repay the amount pursuant to the statutory notice. The cheque dated 06.08.2018 issued by the petitioner to the complainant for an amount of Rs.2,3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand contended that the complaint was filed supported by an affidavit of the power of attorney holder, wherein it is specifically stated that he is aware of the facts of the case. It was further submitted that the propositions laid down in Narayanan's case (supra) do not apply to the facts of the present case especially since, in a complaint under section 138 of the NI Act, the presence of the complainant is not necessary at the stage of taking cognizance. It was further pointed out that petitioner had earlier filed Crl.M.C No.5438/2022 and had later, withdrawn the said petition on 27-10- 2022 without being given the liberty to file a fresh petition and hence he is estopped from filing this petition. 6. While considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out a specific clause permitting it. v) The affidavits of complainant, his witnesses or his power of attorney holder are permissible and sufficient for taking cognizance on the complaint; and vi) The complaint by power of attorney holder on behalf of the original complainant is maintainable though he cannot file a complaint in his own name. 8. In the instant case, the petition to quash the complaint was filed immediately after the summons was served on the accused. Neither the complainant nor the power of attorney holder has been examined. Summons have been issued based on the complaint, the documents, and the affidavit filed in support of the same. 9. There is no averment in the complaint that the power of attorney holder is aware of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the affidavit of the power of attorney holder was sufficient compliance with the requirement. 11. In the decision in In Re: Expeditious Trial of Cases Under S.138 of N.I Act, 1881 [(2021) 16 SCC 116], the Supreme Court had directed that the High Courts must issue practice directions to the Magistrates that for the conduct of enquiry under section 202 Cr.P.C, the evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit, and in suitable cases, the Magistrate can restrict the enquiry to examination of documents without insisting on the examination of witnesses. 12. The circumstances of the instant case has to be appreciated, bearing in mind the above decisions. The stage of giving evidence on oath has ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
