S RAMASWAMY Vs. K SUDARSAN RAO

JUDGEMENT

(1.) THE accused in C. C.<AT> No.</AT> 1255 of 1991, on the file of the Metropolitan Magistrate, Egmore, has filed this petition under section 482 of the Criminal Procedure Code, 1973, praying to call for the records in the above case and quash the same. THE short facts are : THE respondent has filed a private complaint against the petitioner for an offence under section 138 of the Negotiable Instruments Act (which I shall hereinafter refer to as "the Act"). THE complainant is the eldest son of K. Subba Rao, and looking after his father's business. Since his father is aged 70 years and undergoing treatment for cardiac ailment and was advised by doctors not to move about or attend to any business, K. Subba Rao has executed a power of attorney in favour of the complainant on December 24, 1990, giving him power to proceed against the accused for committing the offence under section 138 of the Act. THE accused received Rs. 1, 03, 000 as loan from K. Subba Rao, and on demand, had issued a cheque in the name of K. Subba Rao for Rs. 1, 03, 000 on June 1, 1990. When the said cheque was presented for encashment, it was returned by the bank for want of funds, as the accused had not arranged the amount for honouring the cheque. After issue of statutory notice, since the amount has not been paid within the period of fifteen days from the date of receipt of the notice, this complaint has been filed. Miss K. Sumathi, learned counsel appearing for the petitioner, would submit that, in this petition, Sudarsan Rao, son of K. Subba Rao and power of attorney of K. Subba Rao, is the complainant, and that as per section 142(a), the payee of the cheque or the holder in due course of the cheque alone can be the complainant, and inasmuch as the payee of the cheque was not the complainant, the complaint is bad in law and is liable to be quashed. Per contra, Mr. M. Rajavadivelu, learned counsel for the respondent, would submit that the petitioner, Sudarsan Rao, has filed the complaint only as power of attorney of K. Subba Rao and there is no prohibition under section 142(a) of the Act for the filing of the complaint by the payee of the cheque through his power of attorney.I have carefully considered the submissions made by the rival counsel. To consider these submissions, certain portions of the complaint need to be extracted: