JUDGMENT
Pratap Singh, J.
1. The accused in C. C. No. 1255 of 1991, on the file of the Metropolitan Magistrate, Egmore, has filed this petition under section 482 of the Criminal Procedure Code, 1973, praying of the call for the records in the above case and quash the same.
2. The short facts are : The respondent has filed a private complaint against the petitioner for an offence under section 138 of the Negotiable Instruments Act (which I shall hereinafter refer to as “the Act”). The complainant is the eldest son of K. Subba Rao, and looking after his father’s business. Since his father is aged 70 years and undergoing treatment for cardiac ailment and was advised by doctors not to move about or attend to any business, K. Subba Rao has executed a power of attorney in favour of the complainant on December 24, 1990, giving him power to proceed against the accused for committing the offence under section 138 of the Act. The accused received Rs. 1,03,000 as loan from K. Subba Rao, and on demand, has issued a cheque in the name of K. Subba Rao for Rs. 1,03,000 on June 1, 1990. When the said cheque was presented for encashment, it was returned by the bank for want of funds, as the accused had not arranged the amount for honouring the cheque. After issue of statutory notice, since the amount has not been paid within the period of fifteen days from the date of receipt of the notice, this complaint has been filed.
3. Miss K. Sumathi, learned counsel appearing for the petitioner, would submit that, in this petition, Sudarsan Rao, son of K. Subba Rao and power of attorney of K. Subba Rao, is the complainant, and that as per section 142(a), the payee of the cheque or the holder in due course of the cheque alone can be the complainant, and inasmuch as the payee of the cheque was not the complainant, the complaint is bad in law and is liable to be quashed. Per contra, Mr. M. Rajavadivelu, learned counsel for the respondent, would submit that the petitioner, Sudarsan Rao, has filed the complaint only as power of attorney of K. Subba Rao and there is no prohibition under section 142(a) of the Act for the filing of the complaint by the payee of the cheque through his power of attorney.
4. I have carefully considered the submissions made by the rival counsel. To consider these submissions, certain portions of the complaint need to be extracted :
5. The complainant is : “Mr. K. Sudarsan Rao, S/o. K. Subba Rao, No. 323, ‘N’ Block, 1st Floor, Anna Nagar East, Madras-600 102. (power of attorney of Mr. K. Subba Rao)”. Para 2 of the complaint reads as follows :
“The complainant is the eldest son of Sri K. Subba Rao, and looking after his father’s business. Since his father, Mr. K. Subba Rao, is aged 70 years and undergoing treatment of cardiac ailment and advised by the doctors not to move about or attend any business, Mr. K. Subba Rao has executed a power of attorney in favour of the complainant on December 24, 1990, giving him the power to proceed against one S. Ramasamy for committing the offence under section 138 of the Negotiable Instruments Act.”
6. The submission made by Miss K. Sumathi was that, if the complainant was K. Subba Rao, represented by his power of attorney, K. Sudarsan Rao, it may fir in with the requirement of section 142(a) of the Act, that the payee should be the complainant and that this complaint having been laid by K. Sudarsan Rao, as power of attorney of K. Subba Rao, will not fit in with the capacity of “payee” coming under section 142(a) of the Act. So, the short point is, whether the power of attorney himself can figure as the complainant as the power of attorney of the payee or not.
7. In Ruby Leather Exports v. K. Venu [1994] 1 LW (Crl) 34; [1995] 82 Comp Cas 776 (Mad), my learned brother, Justice Arunachalam, had occasion to consider the question as to whether the complaint by a power of attorney or the complaint filed by the payee through his power of attorney is a valid complaint for offence under section 138 of the Act. The learned judge had held that such a complaint was valid. Miss K. Sumathi, would like to make a distinction between cases where the complaint was filed by the payee represented by the power of attorney and a case like this, where the complaint was filed by the power of attorney, as power of attorney of the payee. Though there is a distinction, I am clear that this distinction is illusory, and if such a distinction is accepted, it would defeat the very ratio of the ruling rendered by Arunachalam J. in Ruby Leather Exports v. K. Venu [1994] 1 LW (Crl) 34; [1995] 82 Comp Cas 776 (Mad),
8. Section 142(a) of the Act reads as follows :
“142. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), –
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; ”
9. In the instant case, the complaint is made by Sudarsan Rao, as power of attorney of K. Subba Rao. So, it is not as if he had made the complaint in his individual capacity. His capacity is derived from the principal, viz., Subba Rao who has died. The power of attorney has got no independent holding or status while filing the complaint as per the attorney of K. Subba Rao, and it is to be construed that only Subba Rao has filed the complaint. Taking that view of the matter, I am clear that the complainant falls within the clause which I have underlined.
10. Miss K. Sumathi would submit that, if such complaints are permitted, the hands of the court would be tied and even a person may come forward with a complaint with a power of attorney. I am unable to accept this submission, because the court’s powers are not tied, the court’s powers are unlimited and it can summon any witness and any document which are relevant for the purpose of the case.
11. Miss K. Sumathi would further submit that in Ruby Leather Exports v. K. Venu [1994] 1 LW (Crl) 34; [1995] 82 Comp Cas 776 (Mad), in para 32, the learned judge has dealt with the case wherein the authorised representatives of the payee had filed a complaint and the learned judge had quashed it and would submit that the ruling would apply to the facts of this case. The facts of the case concerned in Crl. O.P. No. 8731 of 1992, and which have been referred to in para 32 of the above ruling have been set out in para 3 of the above said ruling. The relevant portion in para 3 reads as follows (at page 779) :
“Petitioners are A-1 and A-2 in C.C. No. 9123 of 1991, pending on the file of the Fifth Metropolitan Magistrate, Egmore, Madras. They are alleged to have committed an offence punishable under section 138 of the Negotiable Instruments Act, on the basis of a private complaint initiated by the respondent, Venu. While seeking quashing of the pending prosecution Mr. T. K. Sampath, the petitioners’ counsel, contended that an authorised representative will not be competent to initiate a prosecution under section 142 of the Negotiable Instruments Act and on such complaint, the learned Magistrate could not have taken cognizance.”
12. The above made it clear that the complaint was filed by an “authorised representative” and it cannot be compared with a “power of attorney”. Hence, I am unable to accept either of the submissions made by Miss K. Sumathi. In view of the above, I am clear that the question which had fallen for consideration in this case is to be answered in the affirmative.
13. In the result, the petition fails, and shall stand dismissed.
