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Power of attorney holder can also file a complaint for dishonouring of cheque: HC

April 8, 2017[2017] 80 taxmann.com 72 (Madras)
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NI Act : Law does not insist that 'Payee' or 'Holder in due course' should personally file a complaint, his duly authorised Power of Attorney can file complaint under section 138 on his behalf if cheque was issued in discharge of a legally enforceable debt

• The filing of a Complaint in respect of an offence under section 138 of the Negotiable Instruments Act is permissible through Holder of Power of Attorney, the Complainant, but if the Complainant alone was a witness of the transaction, then, Complainant had alone to make a statement as required under section 200 Cr.PC in support of the complaint. However, if the transaction was witnessed by 'Holder of Power of Attorney' himself as an Agent of Payee, then, Power of Attorney alone could be a witness and the statement has to be made by him alone. If the transaction was witnessed by the Complainant and Attorney both, statement as witness may be made by either.

• Law does not insist that 'Payee' or 'Holder in Due Course' should personally file a complaint, his duly authorised Power of Attorney can file the complaint on his behalf. Once the Complaint is in the name of 'Payee' and is in writing, the ingredients of section 142 of the Negotiable Instruments Act are fulfilled. In reality, who should represent the Payee, where the Payee is a Company or how the Payee should be represented, where Payee is a sole Proprietor concern, is not a matter that is governed by section 142.

• In terms of the ingredients of section 138, a person who is entitled to prefer a Complaint must be a Payee or a Holder in due course. Moreover, an existence of a legally recoverable debt is not a matter of Presumption under section 139 of the Negotiable Instruments Act. In reality, the ingredients of section 139 applies only if the cheque was established to be of nature mentioned in section 138.

• The strict liability under section 138 can be enforced only when a cheque was issued in discharge of any legally enforceable debt or other liability partly or wholly. But the burden to prove that the cheque was not issued against a legally enforceable debt was on the Accused. Admittedly, a cheque must be issued in respect of either post or existing debt or other liability. Under section 138, the cheque must be drawn for the discharge of whole or part of liability. If this aspect is not traversed in the complaint petition, then, it is fatal.

• In terms of the Negotiable Instruments Act, 1881, the arising of cause of action is neither mere presentation of cheque nor mere dishonour of cheque alone, real cause of action is non-payment of cheque amount or non-compliance of demand through notice by the 'Drawer' within the statutory period.

• Undoubtedly, the entries in an Account Book maintained by a Creditor are not by itself evidence to vest a liability upon a Debtor but they can be used to corroborate evidence given by the Creditor that the payments were made and it is for the concerned Court of Law to act upon it and to pass appropriate necessary orders thereto.

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