Whether a Power of Attorney holder can sign and file a complaint petition on behalf of the complainant ?. A three judge bench of the Supreme Court headed by Chief Justice P.Sathasivam has answered the question in the affirmative. The court had to consider the issue with a composition of three judges for an authoritative pronouncement as the views expressed by two judge benches and various High Courts were giving enough room interpreting either way. Out of many cases, the court considered A.C. Narayanan vs. State of Maharashtra & Anr. as a lead case and delved into resolving the issue . It was argued before the court that the verification affidavit made by the constituted attorney is not on the basis of the personal knowledge and hence, it would squarely fall within the ambit of hearsay evidence and cannot be read in evidence in a court of law and raised various other contentions touching upon the competency of the Power of Attorney Holder to institute criminal cases. But the Court held that “From a conjoint reading of Sections 138, 142 and 145 of the N.I. Act as well as Section 200 of the Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the Court and to examine him upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. For the purpose of issuing process under Section 200 of the Code, 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. It is only if and where the Magistrate, after considering the complaint under Section 138 of the N.I. Act, documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness(s) is required, the Magistrate may call upon the complainant to remain present before the Court and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the N.I. Act” While holding the view that the power of attorney holder can be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the N.I. Act, the court has laid down specific guidelines to be followed in such cases.
Posted on: Sun, 15 Sep 2013 06:02:52 +0000
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