AGARWAL TRADING CO. Vs. BABU LAL

JUDGEMENT

(1.) THE respondent Babu Lal through his General Power of Attorney Holder Roop Chand Bansal filed a complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act') with the averments that he wanted to invest his money in someone else's business on interest basis, hence an amount of Rs. 50,000/- was given to Shri Roop Chand Bansal, General Power of Attorney Holder, who in turn handed over this amount to the accused with the stipulated interest and when the money was demanded back a cheque was given in the name of Babu Lal which was bounced and a statutory notice was served but no payment was made by the accused.

(2.) THEREFORE , a complaint by the attorney holder under Section 138 of the Act was filed in the Court of Addl. Chief Judicial Magistrate No. 1, Kota. The trial Court after recording statement of the General Power of Attorney Holder vide order dated 1.12.2005 took cognizance against the petitioners herein under Section 138 of the Act. Feeling aggrieved of the said order of the trial Court, the petitioners have approached this Court by filing the present petition under Section 482 Cr.P.C.

(3.) LEARNED counsel for the petitioners has submitted that a complaint under Section 138 of the Act only signed by General Power of Attorney Holder is not maintainable because as per Section 142 (a) of the Act for taking cognizance of the offence under Section 138 of the Act, a condition precedent is that the complaint should have been filed only by the payee and in the instant case it is the Power of Attorney Holder and not the payee who has filed the complaint under his signatures. So the order of cognizance passed by the trial Court is in violation of the provisions of Section 142A of the Act because it strictly prohibits any other person and authorises only the payee of the cheque to file complaint and admittedly in the present case, General Power of Attorney Holder who lodged the complaint is not a payee. Placing reliance on a D.B. judgment of the Andhra Pradesh High Court in the matter of S.P. Sampathy and etc. v. Smt. Manju Gupta and Another, 2002(3) RCR(Criminal) 309 : (2002 Cri.L.J. 2621), Ravi Kumar and Anr. v. R. Ramalingam, (2005(1) DCR 329) and Smt. Lalita Hundiya v. Govind Narayan Khuteta and Anr., (2008 WLC (Raj.) UC 324), learned counsel for the petitioners has further contended that if the payee has not filed the complaint under Section 138 of the Act, that cannot be taken a note of and no cognizance can be taken on the complaint which was otherwise filed by a third person.