Case Note & Summary
The petitioner, Vilas Baliram Sawant, filed a writ petition challenging the order of the Additional Sessions Judge, Greater Mumbai, which quashed the process issued by the Magistrate under Section 138 of the Negotiable Instruments Act, 1881 against the respondent. The complaint was filed by Sawant claiming to be the constituted attorney of Bhaskar Sakharam Bandiwadekar, the proprietor of RABTURNS. The accused had purchased goods worth Rs.3,00,000 from RABTURNS, paid Rs.1,50,000 initially, and issued a cheque for the balance of Rs.1,50,000 dated 10.03.2008. The cheque was dishonoured on 10.05.2008 with the endorsement 'payment stopped by the drawer'. Despite notice, no payment was made. The Magistrate recorded the verification statement of the constituted attorney and issued process. The Sessions Court quashed the process on the ground that the complaint was not filed by the payee personally. The High Court held that a power of attorney holder can file a complaint and sign and verify it on behalf of the payee, provided he has proper authorization. The court also noted that the revisional court ought not to have interfered with the order of issuance of process as the Magistrate had applied his mind and found a prima facie case. The High Court allowed the writ petition, set aside the order of the Sessions Court, and restored the order of the Magistrate issuing process.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Complaint by Constituted Attorney - Section 138, Negotiable Instruments Act, 1881 - The court considered whether a complaint under Section 138 can be filed by a constituted attorney of the payee. Held that a power of attorney holder can file a complaint and sign and verify it on behalf of the payee, provided he has proper authorization. The Sessions Court erred in quashing the process on the ground that the complaint was not filed by the payee personally. (Paras 1-6) B) Criminal Procedure Code - Revision - Quashing of Process - Section 397, Code of Criminal Procedure, 1973 - The Sessions Court in revision quashed the process issued by the Magistrate. The High Court held that the revisional court ought not to have interfered with the order of issuance of process as the Magistrate had applied his mind and found prima facie case. The order of the Sessions Court was set aside. (Paras 2-6)
Issue of Consideration
Whether a complaint under Section 138 of the Negotiable Instruments Act, 1881 can be filed by a constituted attorney of the payee, and whether the Sessions Court was justified in quashing the process issued by the Magistrate.
Final Decision
The High Court allowed the writ petition, set aside the order of the Additional Sessions Judge, Greater Mumbai dated 18th August 2010 in Criminal Revision Petition No. 1275 of 2008, and restored the order of the Magistrate issuing process against the accused.
Law Points
- Constituted attorney can file complaint under Section 138 of Negotiable Instruments Act
- 1881 if properly authorized
- Power of attorney holder can sign and verify complaint on behalf of payee
- Order of issuance of process can be challenged in revision
- Magistrate's satisfaction at stage of issuance of process is prima facie
