Power of Attorney in Negotiable Instruments Act

JIMMY MADAM VS BOLLY HINDLEY 2005 MAH LR 478

Criminal Procedure Code, 1973, Section 302--Negotiable Instruments Act, 1881, Section 138--Permission to conduct prosecution--Complaint of dishonour of cheque--Death of complainant--Power of attorney of legal heirs of deceased directly permitted to conduct prosecution--High Court upheld trial Courts decision--Maintainability of application of power of attorney--Held, power of attorney can not be allowed to represent the concerned persons in the proceedings without such permission is sought from the Court by the concerned persons--Further  held, power of attorney holder can represent the concerned party, in case permission for such representation is sought from the Court by the concerned person and granted by it--Liberty granted to legal heirs to make application to continue proceeding by themselves or to grant permission to them to authorize the power of attorney holders to continue the prosecution on their behalf. 

K VASANTA KUMARI VS D DEVENDRA RESSY 2008 (2) BCrC 556

 Negotiable Instruments Act, 1881, Section 138--Powers of Attorney Act, 1882, Section 2--Dishonour of cheque--Complaint in the name of payee and in relation to payee but signed by, power of attorney holder duly executed in favour of such attorney held maintainable

VILAS SAWANT VS MAYURI SHAH 2010 ALL MR CRI 2998

Negotiable Instruments Act, 1881, Section 142(a)--Cognizance of offence of dishonour of cheuqe--Complaint found to be filed not by proprietary concern or proprietary concern through its proprietor or constituted attorney but found to be filed by petitioner in his own name who claims to be constituted attorney--Petitioner since not payee or holder of cheque in due course, dismissal of complaint held proper.     [Paras 6 to 9]

VPK URBAN CREDIT CO OPERATIVE BANK VS SHEIKH RUCKNODDIN 2010 ALL MR CRI 1085

 Negotiable Instruments Act, 1881,Section 142(a)--Authorization for filing complaint--Letter of authority in the instant case giving power ‘to appear and depose in any criminal or civil matter filed by society against its customer'--Since aspect of filing  of complaints' is conspicuously absent in the said letter, that aspect can not be read in the said authority letter which also does not refer to any resolution authorizing ‘filing of complaint'--Dismissal of complaint for want of proper authorization sustained.

AC NARAYANAN VS MAH 2013 ALL MR CRI 4048 

Negotiable Instruments Act,1881,Sections 138,142(a), and 145--Dishonour of cheque--Complaint filed by power of attorney--Maintainability of--Clarifying the position it is held that there is no serious conflict between the decisions in that M.M.T.C. and Anr. Vs. Medchl Chemicals & Pharma (P) Ltd. Anr, reported in 2002 (1) SCC 234 and Janki Vasudeo Bhojwani and Anr. Vs. Inusind Bank Ltd. and ors, reported in 2005 (2) SCC 217.      

(i)        Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent. 

(ii)       The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.

(iii)      It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case. 

(iv)      In the light of section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. 

(v)       The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.

MAMTADEVI BHANSALI VS PUSHPADEVI AGRAWAL 2005 ALL MR CRI 3075

Negotiable Insturments Act, 1881, Section 138--Criminal Procedure Code, 1973, Section 200--Evidence Act, 1872, Section 60--Power of Attorney Act, 1882, Section 2--Complaint for Dishonour of cheque    Recording of evidence of aperson i.e. power of attorney as a witness and Complainant--Held, position of power of attorney witnessing transaction right from its inception, in the capacity of power of attorney holder and witness  is inseparable--Further held, power of attorney alone could be a witness in place of complainant apart from the other witnesses, when case involving transactions which were undertaken by him in total exclusion of the payee or holder in due course.

In the case of transactions, where depending upon what is disclosed in the complaint, if all transactions are undertaken by the power of attorney in total exclusion of the payee or the holder in due course i.e. title holder of such cheque, in such eventuality, the power of attorney holder in addition to his capacity to file complaint on the basis of power of attorney, alone has to be the witness in place of complainant apart from the other witnesses if involved in the transactions. Thus, power of attorney himself being a witness right from the inception in the transaction, and if such statement is incorporated in the complaint, the statement contemplated by section 200 of the Criminal Procedure Code has to be recorded by the power of attorney for and on behalf of the complainant while doing so he does his duty as general power of attorney holder and as a witness, which positions are inseparable. AIR 2001 SC 567, 2004(1) Mh.LJ. 487 : 2003 All MR (Cri) 2523 and 2001 Bank J 633, Rel.

GOA STATE MULTI CO OPERATIVE BANK VS M/S KRTARKAR TRADERS 2009ALL MR CRI 3617

Also 2007 ALL MR Cri 2238

Negotiable Instruments Act, 1881,Section 142 r.w.Section 138--Multi State Co-operative Societies Act,2002,S.52(i)--Dishonour of cheque--Complaint by Multi State Co-operative Bank--Managing Director, without having any resolution authorizing him to appoint any person to prosecute on behalf of bank, issuing authority letter in favor of Branch Manager for filing complaints on behalf of bank--Held, unless Managing Director or Chief Executive Officer themselves have been authorized by resolution to initiate legal proceedings, authorization given by them would be meaningless--Acquittal of respondent for want of authority to file complaint, legal and proper.

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