Power of attorney complaints under cheque dishonour law require disclosed knowledge and valid subsisting authority to prosecute.

A complaint under Section 138 of the Negotiable Instruments Act may proceed through a power of attorney holder only if the complaint and affidavit disclose the holder's knowledge of the transaction and the complainant has valid, subsisting authority to prosecute. The court noted that process can issue on the basis of the complaint, supporting documents and affidavit evidence, but in this matter the complaints were founded on a claim that the complainant was a wakf, contrary to the record and an earlier judicial finding, and no material showed continuing authority from the alleged authorising chief mutawalli. The complaints were therefore not maintainable in their present form and the summoning orders were quashed.

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Issues: Whether the summoning orders in complaints under Section 138 of the Negotiable Instruments Act, 1881 were sustainable where the complainant was proceeded with through a power of attorney holder, and whether the complaints were maintainable in law.

Analysis: The requirements governing complaints under Section 138 permit process to be issued on the basis of the complaint, supporting documents and affidavit evidence, and a power of attorney holder may depose if he has witnessed the transaction or has due knowledge of it, with specific assertions on knowledge required in the complaint. Here, although affidavits in pre-summoning evidence were on record, the Court found that the complaints were instituted on the footing that the complainant was a wakf, whereas the record and earlier judicial finding showed that it was not a wakf. The Court also accepted the contention that the alleged authorising chief mutawalli had already ceased to exist and that no material was shown establishing a valid continuing authority to institute the complaints in the form presented.

Conclusion: The complaints were not maintainable in their present form and the summoning orders were quashed.

Ratio Decidendi: A complaint under Section 138 of the Negotiable Instruments Act, 1881 may be filed through a power of attorney holder only where the complaint and affidavit disclose the holder's knowledge and the complainant has valid subsisting authority to prosecute; absent such maintainable authority, summons cannot stand.

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