TaxTMI Login
AI OCR ✕Convert scanned orders, printed notices, PDFs and images into clean, searchable, editable text within seconds. Starting at 2 Credits/page
Try Now →Just a moment...
AI OCR ✕Convert scanned orders, printed notices, PDFs and images into clean, searchable, editable text within seconds. Starting at 2 Credits/page
Try Now →
Press 'Enter' to add multiple search terms. Rules for Better Search
Use comma for multiple locations.
---------------- For section wise search only -----------------
Accuracy Level ~ 90%
of 
Press 'Enter' after typing page number.
of Press 'Enter' after typing page number.
No Folders have been created
Are you sure you want to delete "My most important" ?
NOTE:
of Press 'Enter' after typing page number.
of Press 'Enter' after typing page number.
All Case Laws
of Press 'Enter' after typing page number.
of Press 'Enter' after typing page number.
All Case Laws
Note
Bookmark
Share
Don't have an account? Register Here
of Press 'Enter' after typing page number.
Issues: (i) Whether a complaint for an offence under Section 138 of the Negotiable Instruments Act, 1881 can be filed through a duly authorised power of attorney holder. (ii) Whose sworn statement or examination is required to be recorded before the Magistrate at the stage of cognizance. (iii) Whether personal examination of the complainant is mandatory even where the complainant has not personally witnessed the transaction and the power of attorney holder is the person actually conversant with the dealings.
Issue (i): Whether a complaint for an offence under Section 138 of the Negotiable Instruments Act, 1881 can be filed through a duly authorised power of attorney holder.
Analysis: The complaint under the special enactment is restricted as to the class of persons who may set the criminal law in motion, but the scheme does not exclude lawful agency. A duly authorised agent may act for the payee or holder in due course, and filing through a power of attorney holder is consistent with the statutory concept of agency and with the object of the Act. The Court distinguished cases where the complaint itself was not properly presented or signed and held that such defects were not present here.
Conclusion: A complaint under Section 138 is maintainable when filed by a duly authorised power of attorney holder on behalf of the complainant.
Issue (ii): Whose sworn statement or examination is required to be recorded before the Magistrate at the stage of cognizance.
Analysis: Section 200 of the Code of Criminal Procedure, 1973 requires examination of the complainant and any witnesses present so that the Magistrate can determine whether a prima facie case exists. The purpose is to surface legal evidence for the decision on process. The Court also noted the later statutory scheme under Sections 145 and 146 of the Negotiable Instruments Act, 1881, which permits evidence on affidavit and recognises bank memos as prima facie proof of dishonour, thereby substantially relaxing the necessity of a personal oral examination in every case.
Conclusion: The sworn statement requirement is governed by Section 200 of the Code of Criminal Procedure, 1973, but it may be satisfied in the manner permitted by the special provisions of the Negotiable Instruments Act, 1881.
Issue (iii): Whether personal examination of the complainant is mandatory even where the complainant has not personally witnessed the transaction and the power of attorney holder is the person actually conversant with the dealings.
Analysis: The Court held that the person who must be examined depends on who actually witnessed the relevant transactions. If the complainant alone witnessed them, the complainant should depose. If the power of attorney holder witnessed the transactions, he may depose as a witness in his own capacity. If both or other persons witnessed the dealings in whole or in part, all such persons may be examined. Where the transaction was entirely conducted through the power of attorney holder, he can both present the complaint and be examined as the witness. In any event, the statutory scheme, especially after Sections 145 and 146, does not make dismissal for want of the complainant's personal statement mandatory at the threshold.
Conclusion: Personal examination of the complainant is not invariably mandatory, and the relevant witness may be the complainant, the power of attorney holder, or both, depending on who actually has knowledge of the transaction.
Final Conclusion: The petition was found to raise no ground warranting interference, and the challenge to the order below failed on all substantive points.
Ratio Decidendi: A duly authorised power of attorney holder may file a complaint under Section 138, and the person to be examined before cognizance is the witness with direct knowledge of the transaction, with affidavit evidence and the special provisions of the Negotiable Instruments Act permitting a flexible approach to examination at the threshold.
TaxTMI 
TaxTMI 
