The Supreme Court has held that a criminal complaint in a cheque bounce case can be filed and pursued by a person who holds a power of attorney (PoA) on behalf of the complainant.
A three-judge bench headed by Chief Justice P Sathasivam gave the “authoritative” pronouncement on the issue, referred to it by a division bench in view of conflicting judgements of some high courts and the apex court.
“We are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the Negotiable Instruments Act (which deals with cheque bounce cases),” the bench, also comprising justices Ranjana Prakash Desai and Ranjan Gogoi, said.
The bench, in its judgement, said, “…We clarify the position and answer the questions in the following manner: Filing of complaint petition under Section 138 of Negotiable Instruments Act through PoA holder is perfectly legal and competent.”
It said the PoA holder can depose and verify on oath before the court in order to prove the contents of the complaint. “However, the PoA holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the transactions,” it added.
The PoA holder, however, cannot file the cheque bounce case under his own name and such cases can be filed by the complainants through the PoA holders.
Responding to another legal question raised in the reference by a two-judge bench, it said, “the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant …”.