Case Note & Summary
The applicant, A.C. Narayanan, was the accused in multiple complaints under Section 138 of the Negotiable Instruments Act, 1881, filed by the respondent No. 2, Mrs. Doreen Shaikh, who was the power of attorney holder of the original complainant, Shaikh Anwar Karim Bux. The applicant filed applications under Section 482 of the Code of Criminal Procedure, 1973, challenging the order dated 29th November 2000 passed by the Additional Chief Metropolitan Magistrate, 8th Court at Bandra, Mumbai, which rejected his application for discharge/recalling of process. The facts of all applications were similar, and reference was made to Criminal Application No. 803 of 2002. The complaint was signed and filed by the respondent No. 2 as the constituted attorney of the complainant. The applicant argued that the complaint was not maintainable as the power of attorney holder was not properly authorized to file the complaint. The court considered the issue of whether a complaint under Section 138 of the Negotiable Instruments Act, 1881 filed by a power of attorney holder without proper authorization is maintainable. The court held that the power of attorney holder must have proper authorization to file the complaint, and if the complaint is not maintainable, the court can recall the process. The court allowed the applications and quashed the complaints.
Headnote
A) Criminal Procedure Code - Section 482 - Inherent Powers - Quashing of Complaint - Complaint under Section 138 of Negotiable Instruments Act, 1881 filed by power of attorney holder without proper authorization is not maintainable - Court can recall process if complaint is not maintainable - Held that the power of attorney holder must have proper authorization to file complaint (Paras 1-5).
Issue of Consideration
Whether a complaint under Section 138 of the Negotiable Instruments Act, 1881 filed by a power of attorney holder without proper authorization is maintainable, and whether the court can recall process in such a case.
Final Decision
The court allowed the applications and quashed the complaints.
Law Points
- Power of attorney holder can file complaint under Section 138 NI Act if properly authorized
- complaint filed by power of attorney holder without proper authorization is not maintainable
- court can recall process if complaint is not maintainable
Case Details
2005 LawText (BOM) (08) 61
Criminal Application No. 803 of 2002 along with Criminal Application Nos. 797, 798, 799, 801, 802 of 2002
Shri G.S. Hegde with Shri C.M. Lokesh for applicant, Shri J.A. Udaipuri with Shri Kanse for respondent No. 2, Shri A.S. Gadkari and Shri K.V. Saste for respondent-State
State of Maharashtra, Mrs. Doreen Shaikh
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Nature of Litigation
Criminal applications under Section 482 of Code of Criminal Procedure, 1973 challenging order rejecting discharge/recalling of process in complaints under Section 138 of Negotiable Instruments Act, 1881.
Remedy Sought
Applicant sought quashing of complaints and recall of process issued against him.
Filing Reason
Applicant challenged the order dated 29th November 2000 passed by the Additional Chief Metropolitan Magistrate, 8th Court at Bandra, Mumbai, rejecting his application for discharge/recalling of process.
Previous Decisions
The trial court rejected the application for discharge/recalling of process.
Issues
Whether a complaint under Section 138 of the Negotiable Instruments Act, 1881 filed by a power of attorney holder without proper authorization is maintainable.
Whether the court can recall process if the complaint is not maintainable.
Submissions/Arguments
Applicant argued that the complaint was not maintainable as the power of attorney holder was not properly authorized to file the complaint.
Respondent argued that the power of attorney holder was authorized to file the complaint.
Ratio Decidendi
A complaint under Section 138 of the Negotiable Instruments Act, 1881 filed by a power of attorney holder without proper authorization is not maintainable, and the court can recall process in such a case.
Judgment Excerpts
The challenge in these Applications under section 482 of the Code of Criminal Procedure, 1973 is to the order dated 29th November 2000 passed by the learned Additional Chief Metropolitan Magistrate, 8th Court at Bandra, Mumbai.
The complaint is signed and filed by the Respondent No.2 who is the Constituted Attorney of the Complainant.
Procedural History
The applicant filed applications under Section 482 of the Code of Criminal Procedure, 1973 challenging the order dated 29th November 2000 passed by the Additional Chief Metropolitan Magistrate, 8th Court at Bandra, Mumbai, which rejected his application for discharge/recalling of process in complaints under Section 138 of the Negotiable Instruments Act, 1881.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 482
