Tuesday, 2 October 2018

Whether complaint for dishonour of cheque can be filed through power of attorney holder?

We have considered the decision of
this Court in A.C. Narayanan vs. State of
Maharashtra and Another  (2015) 12 SCC 203, 
wherein this Court
has clearly held that a complaint filed by the
power of attorney would be maintainable in
law. If that is so, the initial complaint
filed by the appellant on behalf of Sairabee
as the complainant would not be invalid in law
as held by the High Court in the order under
challenge. 

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.237 OF 2012

SK. TAMISUDDIN  Vs  JOY JOSEPH CREADO & ANR. 

Coram:
RANJAN GOGOI, NAVIN SINHA, K.M. JOSEPH.

Dated:SEPTEMBER 25, 2018



1. A complaint was filed by one-Sairabee
through her Special Power of Attorney Holder,
Sk. Tamisuddin, the appellant herein, under
Section 138 of the Negotiable Instruments
Act, 1881 read with Section 420 IPC. Sairabee
died while the trial was in progress. The
appellant after the death of Sairabee filed an
application before the learned trial Court to
continue the prosecution as her legal heir
(son). The said application was allowed by the
learned trial Court.
2. In a quashing petition, the High
Court by the impugned order took the view that
the initiation of the complaint by the Special
Power of Attorney of Sairabee was invalid and
that the continuance of the proceedings after

the death of Sairabee by the said Power of
Attorney would not be permissible. Hence the
proceedings against the accused-respondents
were quashed by the High Court.
3. We have heard the learned counsels
for the parties.
4. We have considered the decision of
this Court in A.C. Narayanan vs. State of
Maharashtra and Another  (2015) 12 SCC 203, 
wherein this Court
has clearly held that a complaint filed by the
power of attorney would be maintainable in
law. If that is so, the initial complaint
filed by the appellant on behalf of Sairabee
as the complainant would not be invalid in law
as held by the High Court in the order under
challenge. After the death of Sairabee, the
application filed by the appellant was to
continue the criminal prosecution as the legal
heir of the deceased Sairabee, the High Court
seems to have understood this application to
be for continuance of the criminal prosecution
in his capacity as a Power of Attorney. The
competence of the legal heir of a person
aggrieved to continue a criminal complaint is

not in doubt. The High Court therefore, in our
considered view, ought to have allowed the
continuance of the proceedings as prayed by
the appellant and ought not to have quashed
the proceedings as it has been done.
5. We, therefore, set aside the order of
the High Court and direct for commencement of
the trial against accused-respondent No.1 from
the stage at which the trial was interdicted
by the High Court by the Order under
challenge.
6. The appeal is consequently allowed in
the above terms.
....................,J.
(RANJAN GOGOI)
....................,J.
(NAVIN SINHA)
....................,J.
(K.M. JOSEPH)
NEW DELHI
SEPTEMBER 25, 2018

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