A three-judge bench
of the Supreme Court of India (“Supreme Court”) has clarified the position
regarding the filing of criminal petition through the holder of power of
attorney for an offence under Section 138 of Negotiable Instruments Act, 1881 (A.C. Narayanan
v. State of Maharashtra & Anr). The present case, which consisted
of a set of two criminal appeals, involved the issue whether, under
Section 138 and 142 of NI Act, a criminal petition can be filed by a person
through a power of attorney. While section 138 of NI Act makes one liable for
dishonour of cheque, section 142 of NI Act provides for the conditions before a
court can take cognizance of the offence under Section 138.
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The present matter was heard
by the Full Bench of the Supreme Court when a reference was made by a division
bench of the Court. According to the division bench, there was a difference of
opinion amongst various High Courts as also the decisions of the division benches
of the Supreme Court in M.M.T.C. and Anr. vs. Medchl Chemicals &
Pharma (P) Ltd. and Anr [2002 (1) SCC 234] and Janki Vashdeo Bhojwani
and Anr. vs. Indusind Bank Ltd. and Ors [2005 (2) SCC 217]. In M.M.T.C.
case (supra), it was held by the Supreme Court that no court can decline to
take cognizance on the sole ground that the complainant was not competent to
file the complaint. On other hand, in Janki Vashdeo case (supra), it was held
by the Court that under Order 3, Rules 1 and 2 of the Code of Civil Procedure,
1908 (“CPC”), the holder of power of attorney cannot depose for the principal
for the acts done by the principal.
