Cheque Bounce Complaint Filed By Power Of Attorney Maintainable In Law, Reiterates SC [Read Order]

“We have considered the decision of this Court in A.C. Narayanan vs. State of Maharashtra and Another, wherein this Court has clearly held that a complaint filed by the power of attorney would be maintainable in law.”

The Supreme Court has reiterated that a cheque bounce complaint filed by the Power of Attorney would be maintainable in law.

In SK Tamisuddin vs. Joy Joseph Creado, the bench of Justice Ranjan Gogoi, Justice Navin Sinha and Justice KM Joseph reiterated the dictum in A.C. Narayanan vs. State of Maharashtra.

In this case, the Special Power of Attorney had filed the complaint on behalf of Sairabee. During the pendency of the case, Sairabee died. The application filed by Power of Attorney, who was also the son, to continue the prosecution as her legal heir, was allowed by the trial court.

The high court quashed the proceedings on the ground that the initiation of the complaint by the Special Power of Attorney of Sairabee was invalid and that the continuance of the proceedings after the death of Sairabee by the said Power of Attorney would not be permissible.

On appeal, the bench said: “We have considered the decision of this Court in A.C. Narayanan vs. State of Maharashtra and Another, wherein this Court has clearly held that a complaint filed by the power of attorney would be maintainable in law. If that is so, the initial complaint filed by the appellant on behalf of Sairabee as the complainant would not be invalid in law as held by the High Court in the order under challenge.”

The court, setting aside the high court order, further observed that legal heir of a person aggrieved is entitled to continue a criminal complaint. “After the death of Sairabee, the application filed by the appellant was to continue the criminal prosecution as the legal heir of the deceased Sairabee, the High Court seems to have understood this application to be for continuance of the criminal prosecution in his capacity as a Power of Attorney. The competence of the legal heir of a person aggrieved to continue a criminal complaint is not in doubt,” the bench said.

AC Narayanan Case

In AC Narayanan, a three-judge bench headed by then CJI P Sathasivam had observed: “But the Court held that “From a conjoint reading of Sections 138, 142 and 145 of the N.I.  Act as well as Section 200 of the Code, it is clear that it is open to  the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint.  Once the complainant  files  an  affidavit  in support of the complaint before issuance of the process  under  Section  200 of the Code, it is thereafter open to the Magistrate, if he thinks  fit,  to call upon the complainant to remain present and to examine  him  as  to  the facts contained in the affidavit submitted by the complainant in support  of his complaint.  However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the  Court and to examine him upon oath for taking decision whether or not to issue process on the complaint under  Section  138  of  the  N.I.  Act.   For the purpose of issuing process under Section 200 of the Code, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I. Act. It is only if and where  the  Magistrate, after considering the complaint under Section 138 of the N.I. Act, documents produced  in  support thereof and the verification in the form of affidavit  of  the  complainant, is of the view that examination of the  complainant  or  his  witness(s)  is required, the Magistrate may call upon the  complainant  to  remain  present before the Court and examine the complainant and/or his  witness  upon  oath for taking a decision whether or not  to  issue  process  on  the  complaint under Section 138 of the N.I. Act.”