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of <h1>Power of attorney holder can file Section 138 complaints, supporting affidavits validate magistrate's process issuance</h1> <h3>G. KOMALAN Versus THOMAS ALEXANDER, STATE OF KERALA</h3> The Kerala HC dismissed a petition to quash a complaint filed under Section 138 of the Negotiable Instruments Act by a power of attorney holder. The court ... Dishonour of cheque - competence of power of attorney holder to file a complaint under Section 138 of the Negotiable Instruments Act, 1881, without any averment in the complaint about the power of attorney holder's knowledge of the facts of the case - HELD THAT:- 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 process to the accused on 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. Summons have been issued based on the complaint, the documents, and the affidavit filed in support of the same. 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 decision in MITA INDIA PVT. LTD. VERSUS MAHENDRA JAIN [2023 (2) TMI 824 - SUPREME COURT], the said statement in the affidavit is sufficient. Thus, a power of attorney holder, who is aware of the facts of the case and has made such an averment in the affidavit, is certainly competent to lodge a private complaint, even if such an averment is absent in the complaint. Conclusion - A power of attorney holder, who is aware of the facts of the case and has made such an averment in the affidavit, is certainly competent to lodge a private complaint, even if such an averment is absent in the complaint. This petition to quash the complaint is dismissed, leaving open the question regarding the maintainability of a second petition under section 482 Cr.P.C. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered in this judgment are:Whether a power of attorney holder is competent to file a complaint under Section 138 of the Negotiable Instruments Act, 1881, without any averment in the complaint about the power of attorney holder's knowledge of the facts of the case.Whether the absence of a specific averment in the complaint regarding the power of attorney holder's knowledge of the transaction affects the validity of the complaint.Whether the affidavit accompanying the complaint, which states the power of attorney holder's knowledge, is sufficient to fulfill the legal requirements.The implications of filing a second petition under Section 482 of the Code of Criminal Procedure, 1973, after withdrawing an earlier petition.2. ISSUE-WISE DETAILED ANALYSISIssue 1: Competence of Power of Attorney Holder to File ComplaintRelevant Legal Framework and Precedents: The court examined Section 138 of the Negotiable Instruments Act, 1881, and relevant precedents, including A.C. Narayanan v. State of Maharashtra and Another, which established that a power of attorney holder can file a complaint if they have knowledge of the transaction.Court's Interpretation and Reasoning: The court reasoned that a power of attorney holder is competent to file a complaint under Section 138, provided they have knowledge of the transaction. The court noted that the presence of the complainant is not necessary at the stage of taking cognizance.Key Evidence and Findings: The affidavit filed in support of the complaint contained a specific averment that the power of attorney holder was conversant with the facts of the case.Application of Law to Facts: The court applied the principles from A.C. Narayanan and determined that the affidavit's averment was sufficient to establish the power of attorney holder's competence.Treatment of Competing Arguments: The petitioner argued that the absence of an averment in the complaint rendered the complaint invalid. The respondent countered that the affidavit sufficed. The court favored the respondent's argument.Conclusions: The court concluded that the power of attorney holder was competent to file the complaint based on the affidavit's averment of knowledge.Issue 2: Absence of Specific Averment in ComplaintRelevant Legal Framework and Precedents: The court referenced MITA India Pvt. Ltd v. Mahendra Jain, where the Supreme Court held that an affidavit could suffice even if the complaint lacked a specific averment.Court's Interpretation and Reasoning: The court interpreted that the affidavit's content could compensate for the complaint's lack of specific averment regarding the power of attorney holder's knowledge.Key Evidence and Findings: The affidavit detailed the circumstances leading to the cheque's issuance and affirmed the power of attorney holder's knowledge.Application of Law to Facts: The court applied the reasoning from MITA India Pvt. Ltd to conclude that the affidavit was sufficient.Treatment of Competing Arguments: The petitioner claimed the complaint was deficient, while the respondent cited the affidavit's sufficiency. The court agreed with the respondent.Conclusions: The court held that the affidavit's averment met the legal requirements, making the complaint valid.Issue 3: Filing a Second Petition under Section 482 Cr.P.C.Relevant Legal Framework and Precedents: The court noted procedural aspects under Section 482 of the Cr.P.C.Court's Interpretation and Reasoning: The court did not delve deeply into this issue but left open the question regarding the maintainability of a second petition after withdrawing the first.Key Evidence and Findings: The petitioner had previously withdrawn a similar petition without liberty to file afresh.Application of Law to Facts: The court acknowledged the procedural history but focused on the substantive issues of the complaint's validity.Treatment of Competing Arguments: The court did not provide a definitive ruling on this procedural matter.Conclusions: The court dismissed the petition, leaving the procedural question open.3. SIGNIFICANT HOLDINGSPreserve Verbatim Quotes of Crucial Legal Reasoning: The court stated, 'a power of attorney holder, who is aware of the facts of the case and has made such an averment in the affidavit, is certainly competent to lodge a private complaint, even if such an averment is absent in the complaint.'Core Principles Established: The competence of a power of attorney holder to file a complaint under Section 138 of the NI Act is upheld if an affidavit affirms their knowledge of the transaction.Final Determinations on Each Issue: The court dismissed the petition to quash the complaint, affirming the sufficiency of the affidavit's averment regarding the power of attorney holder's knowledge.
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