Case Note & Summary
The appellant, M/s. Amin Warehousing, a proprietary concern, filed a complaint through its constituted attorney against the respondent, Al Freight International Pvt. Ltd., and its directors for dishonour of eight cheques under Section 138 of the Negotiable Instruments Act, 1881. The Magistrate limited the prosecution to five cheques as the notice of demand for three cheques was not issued within the statutory period. The trial court acquitted the accused on the ground that the complaint was not properly filed by the constituted attorney, as the power of attorney was not proved and the attorney lacked personal knowledge of the transaction. The appellant appealed against the acquittal. The High Court examined the evidence and found that the constituted attorney had no personal knowledge of the transaction and the power of attorney was not exhibited. The court held that while a complaint can be filed by a constituted attorney, the attorney must have personal knowledge and the power of attorney must be properly proved. The court also noted the poor drafting of the complaint and affidavit of evidence. The appeal was dismissed, upholding the acquittal.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Complaint by Constituted Attorney - The complaint was filed by a constituted attorney of the proprietor of a proprietary concern. The court held that a complaint under Section 138 can be filed by a constituted attorney, but the attorney must have personal knowledge of the transaction and the power of attorney must be properly proved. In this case, the attorney did not have personal knowledge and the power of attorney was not exhibited, leading to dismissal of the complaint. (Paras 1-10) B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Notice of Demand - The court noted that for three cheques, the notice of demand was not issued within the statutory period, and thus the prosecution was limited to the remaining five cheques. (Para 2) C) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Affidavit of Evidence - The affidavit of evidence was poorly drafted and ambiguous, which created problems for the complainant. The court emphasized the need for proper drafting of complaints and affidavits in cheque dishonour cases. (Para 1)
Issue of Consideration
Whether the complaint filed by a constituted attorney without proper proof of power of attorney and without personal knowledge of the transaction is maintainable under Section 138 of the Negotiable Instruments Act, 1881.
Final Decision
The appeal is dismissed. The acquittal of the respondents is upheld.
Law Points
- Complaint under Section 138 NI Act can be filed by constituted attorney
- but the attorney must have personal knowledge of the transaction
- affidavit of evidence must be properly drafted
- notice of demand must be issued within statutory period
- power of attorney must be properly proved.
