9911796707
TMI Blog2025 (1) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.2,35,00,000/- (Rupees Two crores thirty-five lakhs) drawn on the ICICI Bank, CBD Belapur branch, towards the discharge of an existing liability was dishonoured. 3. As the complainant was allegedly abroad, the complaint was filed by the first respondent through his nephew - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase (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 It was further pointed out that petitioner had earlier filed Crl.M.C No.5438/2022 and had later, withdrawn the said petition on 27-10- 2022 without being given the liberty to file a fresh petition and hence he is estopped from filing this petition. 6.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 rival contentions, it needs to be borne in mind that a power of attorney holder is a competent person to file a complaint under section 138 of the NI Act. The aforesaid proposition has already been settled by various judgments. A Magistrate is entitled to issue proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 transaction. Still, the copy of the power of attorney is produced along with the complaint. The cause title also refers to the fact that the complainant is represented by the power of attorney holder. Nonetheless, in the affidavit filed in support of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 not yet been reached. Summons was issued to the accused after verifying the affidavit of the power of attorney holder, which contains a specific averment that the power of attorney holder is conversant with the facts of the case. In view of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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