Case Note & Summary
The case involves four criminal applications filed by the applicant challenging the issuance of process in complaints under Section 138 of the Negotiable Instruments Act, 1881. The common question of law was whether the complaints were maintainable given the non-compliance with Section 142 of the Act, which requires the complaint to be in writing and made by the payee or holder in due course, and also requires proper verification and affidavit. The applicant argued that the complaints were filed by a power of attorney holder without proper verification and without accompanying affidavit, thus not maintainable. The court, after hearing the parties, held that the requirement under Section 142 is mandatory and the complaints were not maintainable as they did not comply with the statutory requirements. Consequently, the court quashed the criminal proceedings in all four applications.
Headnote
A) Negotiable Instruments Act - Section 138 - Dishonour of Cheque - Complaint Maintainability - Section 142 of Negotiable Instruments Act, 1881 - Complaints filed by power of attorney holder without proper verification and affidavit are not maintainable - Held that the requirement of filing complaint in writing and by the payee or holder in due course is mandatory and non-compliance vitiates the proceedings (Paras 3-5).
Issue of Consideration
Whether criminal complaints for offence under Section 138 of the Negotiable Instruments Act, 1881 are maintainable when filed without proper verification and affidavit as required under Section 142 of the said Act?
Final Decision
All four criminal applications are allowed. The criminal proceedings in the respective complaints are quashed.
Law Points
- Section 142 of Negotiable Instruments Act
- 1881 requires complaint to be in writing and made by payee or holder in due course
- complaint must be accompanied by affidavit of complainant
- non-compliance renders complaint not maintainable
- verification of complaint is mandatory
- power of attorney holder cannot file complaint without proper authorization
Case Details
2014 LawText (BOM) (07) 34
Criminal Application No.2256 of 2007 with Criminal Application Nos.2257/2007, 2277/2007 & 1600/2007
Mr. Sunil M. Vibhute for appellant; Mr. K.S. Patil, APP for Respondent/State; Mr. S.A. Darak, Adv. for Respondent No.2
Sow. Devakibai w/o Yadavrao Nemaniwar
The State of Maharashtra & The Chief Officer, Municipal Council, Kinwat
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Nature of Litigation
Criminal applications challenging issuance of process in complaints under Section 138 of Negotiable Instruments Act, 1881
Remedy Sought
Quashing of criminal proceedings in four complaints
Filing Reason
Complaints were filed without proper verification and affidavit as required under Section 142 of the Negotiable Instruments Act, 1881
Issues
Whether the complaints under Section 138 of the Negotiable Instruments Act, 1881 are maintainable when filed without proper verification and affidavit as required under Section 142 of the said Act?
Submissions/Arguments
Applicant submitted that in light of Section 142 of the Negotiable Instruments Act, 1881, the complaints were not maintainable as they were filed without proper verification and affidavit.
Respondent/State opposed the applications.
Ratio Decidendi
The requirement under Section 142 of the Negotiable Instruments Act, 1881 that a complaint under Section 138 must be in writing and made by the payee or holder in due course is mandatory. Non-compliance with the requirement of proper verification and affidavit renders the complaint not maintainable.
Judgment Excerpts
In the light of provisions contained in Section 142 of the Negotiable Instruments Act, the complaints were not maintainable.
The requirement of filing complaint in writing and by the payee or holder in due course is mandatory and non-compliance vitiates the proceedings.
Procedural History
The applicant filed four criminal applications challenging the issuance of process in complaints under Section 138 of the Negotiable Instruments Act, 1881. The court heard the applications together and disposed them by a common judgment.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 142
