IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.08.2008 CORAM THE HONOURABLE MR. JUSTICE K.N.BASHA Criminal Original Petition No.39807 of 2004 and Crl.M.P.No.12764 of 2004 K.R.Kannan ... Petitioner vs Mrs.V.Jeya ... Respondent. Rep.by her power Agent M.Ventatachalam Prayer:- Criminal Original Petition filed under Section 482 of the Cr.P.C. to call for the records in C.C.No.941 of 2004 on the file of the learned Judicial Magistrate No.I, Salem, and quash the same. For Petitioner : Mr.Gopalakrishna Lakshmana Raju S.C. for Mr.R.Radhapandian For Respondent : Mr.P.Palaninathan Legal Aid Counsel. O R D E R The petitioner has come forward with this criminal original petition seeking the relief of quashing the proceedings pending in C.C.No.941 of 2004 on the file of the learned Judicial Magistrate No.1, Salem. 2.The learned Senior Counsel appearing for the petitioner submits that the petitioner is facing trial for the alleged offence under Section 138 of the Negotiable Instruments Act. The learned Senior Counsel has put forward two contentions. Firstly, the complaint was preferred by the complainant represented by her Power of Attorney Agent and the Power of Attorney document was not furnished to the petitioner/ accused and the document of Power of Attorney itself is defective and the complaint was signed only by the Power of Attorney and there is nothing to show that the complaint was filed by the complainant and as such, the learned Magistrate ought not to have taken cognizance of the case. Secondly, it was contended that admittedly, the complaint was preferred after a delay of 3 days and the learned Magistrate, without assigning any valid reason and without affording any opportunity to the petitioner/accused, allowed the condone delay application and taken the complaint on file and as such, the entire proceedings are vitiated. https://hcservices.ecourts.gov.in/hcservices/ 3. Per contra, Mr.Palaninathan, learned counsel appearing for the respondent, contended that there is no illegality or infirmity in preferring the complaint through the Power of Attorney Agent. It is contended that the complainant may prefer the complaint through a Power Agent and there is no legal impediment, as the Power of Attorney agent has stepped into the shoes of the complainant in view of the Power of Attorney document executed in his favour by the complainant. In support of his contention, the learned counsel for the respondent would place reliance on the Division Bench decision of this Court in Gopalakrishnan, K. -vs- Karunakarann reported in 2006 (4) C.T.C. 333. The learned counsel for the respondent further contended that there is no contemplation of affording opportunity to the accused even before taking cognizance of the case for condoning the delay in preferring the complaint, as per the Proviso to Section 142(b) of the Negotiable Instruments Act. It is contended that there is a delay of 3 days and the learned Magistrate has condoned the delay having satisfied about the sufficient cause shown by the complainant/respondent and it is a matter between the Court and the complainant and the accused has no locus standi to be heard at the time of condonation of delay in preferring the complaint. 4. I have carefully considered the rival contentions put forward by either side and also perused the docket order condoning the delay in preferring the complaint and other materials available on record. 5. As already pointed out, the learned Senior Counsel raised two contentions, viz., that (i) the complaint was filed only by the Power of Attorney as the same was signed by the Power of Attorney and there is nothing to show that the complaint was filed by the complainant and the Power of Attorney document was also not furnished to the accused and as such, the learned Magistrate ought not to have taken cognizance of the complaint and hence, the complaint is liable to be quashed and that (ii) the learned Magistrate, without affording opportunity to the accused, condoned the delay of 3 days in preferring the complaint under the Proviso to Section 142(b) of the Negotiable Instruments Act and the learned Magistrate has not assigned any valid reason for condoning such delay and as such, the complaint itself is not maintainable and the same is liable to be quashed. 6. Insofar as the 1st contention is concerned, this Court is unable to accept the contention of the learned Senior Counsel as it has been held by a Division Bench of this Court that a complainant can very well prefer the complaint through his/her Power of Attorney Agent as per the decision reported in Gopalakrishnan, K. -vs- Karunakarann (2006 (4) C.T.C. 333). The Division Bench of this Court has held in that decision in paragraph 15 as hereunder : "15. Once the Power of Attorney agent makes the Complaint, for all practical purposes, it is for the payee https://hcservices.ecourts.gov.in/hcservices/ or holder in due course of the cheque and the Power of Attorney agent steps into the shoes of the payee or holder in due course of the cheque. Further, as held by the Supreme Court in Ravulu Subba Rao and others V. Commissioner of Income Tax, Madras (AIR 1956 SC 604) with regard to the scope of Section 2 of the Power of Attorney Act, whatever the person can do himself, he can do through an agent and when a person authorises another to sign for him, the signature of the person so signing is the signature of the person authorising it. In the light of the above discussion, we are of the view that it is not required to record the sworn affidavit of the complainant also on a future date to enable the Court to exercise its discretion." Therefore, in view of the principle laid down by the Division Bench of this Court in the decision cited supra, the Power of Attorney was authorised to sign the complaint by the complainant and as such there is no illegality or infirmity in preferring the complaint. Therefore, in view of the aforesaid law laid down by this Court, the 1st contention of the learned Senior Counsel is hereby rejected. 7. As far as the 2nd contention put forward by the learned Senior Counsel is concerned, this Court is of the considered view that there is much force in such contention. It is seen that admittedly, there is a delay of 3 days in preferring the complaint and the complainant/respondent also filed an affidavit explaining the reason for the delay and the learned Magistrate has condoned the delay by passing a docket order. The fact remains that the perusal of such order does not disclose any reason on which the learned Magistrate satisfied about the sufficient cause for condoning the delay and condoned the delay. It is pertinent to refer the relevant Proviso under Section 142(b) of the Negotiable Instruction Act. Section 142 of the Negotiable Instruments Act reads as follows:- "142.Cognisance of offences Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a)no court shall take cognisance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b)such complaint is made within one month of the date on which the cause-of-action arises under clause(c) of the proviso to section 138: [PROVIDED that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.] https://hcservices.ecourts.gov.in/hcservices/ 8. From the reading of the above said provision, it is clear that as per the Proviso to Section 142(b) of the Negotiable Instruments Act, it is the burden of the complainant to satisfy the Court by showing sufficient cause for condoning the delay. Unfortunately, the learned Magistrate has not assigned any reason at all for arriving at the satisfaction of the sufficient cause to condone the delay. 9. The yet another question involved in this case is whether the accused is entitled to be heard even before taking cognizance of the complaint at the time of condoning the delay in preferring the complaint. This Court had an occasion to deal with the above said question in Sanjay Raghuram and another -vs- M/s.Telengana Investments and Finances Ltd. reported in 2006-2- L.W. (Crl.) 607, wherein this Court has held as follows:- "13. It is true that the Court has been given discretion to condone the delay in preferring the complaint beyond the period prescribed under Section 142(b) of the Negotiable Instruments Act, but that discretion will have to be exercised judiciously.The judicial discretion cannot be exercised arbitrarily and capriciously. The principles of natural justice also will have to be followed in exercising discretion by the Court. 14. ............ 15. Though the accused is out of picture till the complaint is taken cognizance of by the court, an indefeasible right of the accused is found incorporated under Section 142(b) of the Negotiable Instruments Act. The Court, exercising its discretion under the proviso to the aforesaid provision of law, is empowered to make a dent in such a right of the accused by extending the period of limitation, on satisfying itself of the reasons assigned by the complainant. 16.............. 17. The order passed by the Court condoning the delay will definitely affect the interest of the accused. No order can be passed unless the party who is going to be affected by such an order is afforded sufficient opportunity to air his views on the reasons assigned by the complainant. 18. It is not only a matter between the complainant and the Court, but it is a question of deciding the valuable right of the accused who cannot be shut out from such proceedings. https://hcservices.ecourts.gov.in/hcservices/ 19. Therefore, the complainant or power of attorney holder will have to file an affidavit setting forth the reasons for the delay accompanied by a petition and the discretion of the Court to condone such a delay can be exercised only after affording an opportunity to the accused to contest the reasons assigned by the complainant." 10. In view of the above principle laid down by this Court in the decision cited supra, it is crystal clear that condoning the delay of preferring a complaint is not only a matter between the complainant and the Court, but it is a question of deciding the valuable right of the accused. In the event of condoning the delay, even without affording opportunity to the accused, the right of the accused is affected and infringed, inasmuch as the accused has been denied an opportunity to put forward his objection for condoning the delay. In the event of the accused raising his objection to show that the complainant has not shown any sufficient cause, the complaint is liable to be dismissed as not maintainable and the accused need not undergo the ordeal of trial. Therefore, this Court is constrained to direct the learned Judicial Magistrate No.1, Salem, to reconsider the condone delay petition by giving opportunity to both the complainant and the accused to put forward their respective contentions and to pass orders on merits by assigning valid reasons. It is also made clear that the above said defect of not assigning any valid reason or not affording any opportunity to the accused is only a curable irregularity or defect and as such, the complaint is not liable to be quashed at its threshold. 11. Before parting with this matter, this Court is also placed on record the commendable services rendered by Mr.P.Palaninathan, learned counsel appearing for the respondent as Legal Aid Counsel, who had taken pain to make his submissions and also placed reliance on authorities. He is entitled to get remuneration of Rs.2,500/- from the Legal Services Authority. 12.With the above said observations, the criminal original petition is disposed of. Connected M.P. is closed. Sd/- Asst. Registrar /true copy/ bs/ Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ Copy to: 1. The Judicial Magistratre No.I, Salem. 2. The Secretary, Legal Services Authority, High Court, Madras. +1 cc to Mr.P.Palaninathan, Advocate, SR.No.49039 +1 cc to Mr.R.Radhapandian, Advocate, SR.No.48624 Crl.O.P.No.39807 of 2004 KJ(CO) SMK/22.9.08 https://hcservices.ecourts.gov.in/hcservices/