The competence of a power of attorney holder to file a complaint under section 138 of the Negotiable Instruments Act, 1881 (for short the ' NI Act '), in the absence of any averment in the complaint about the power of attorney holder's knowledge of the facts of the case, arises for consideration.

2. Petitioner is the accused in C.C. No.1783/2021 on the files of the Judicial First Class Magistrate's Court-XII, Thiruvananthapuram. The first respondent instituted a complaint alleging dishonour of a cheque issued to him and consequential refusal to repay the amount pursuant to the statutory notice. The cheque dated 06.08.2018 issued by the petitioner to the complainant for an amount of Rs.2,35,00,000/- (Rupees Two crores thirty-five lakhs) drawn on the ICICI Bank, CBD Belapur branch, towards the discharge of an existing liability was dishonoured.

3. As the complainant was allegedly abroad, the complaint was filed by the first respondent through his nephew - the power of attorney holder. Summons were issued after cognizance was taken on the basis of the complaint, the documents attached along with it and Crl.M.C No.2256/23 4 2024:KER:95315 the affidavit of the power of attorney holder. After receipt of the summons, the petitioner has approached this Court under section 482 of the Code of Criminal Procedure, 1973 (for short ' Cr.P.C ') seeking to quash the proceedings contending that the power of attorney holder was not competent to institute the complaint.

4. Sri. Samsudin P., the learned counsel for the petitioner contended that the complainant had not pleaded in the complaint about the power of attorney holder's knowledge of the transaction involved in the case and hence the power of attorney holder could not have lodged the complaint. Referring to the decision in A.C. Narayanan v. State of Maharashtra and Another [(2014) 11 SCC 790], it was submitted that, since the power of attorney holder has not been stated to be a person who had seen or personally aware of the transaction involved in the case, he could not have lodged the complaint on behalf of the complainant and hence the complaint is liable to be quashed.

5. Sri. Philip T. Varghese, the learned counsel for the first respondent on the other hand contended that the complaint was filed supported by an affidavit of the power of attorney holder, wherein it is specifically stated that he is aware of the facts of the case. It was further submitted that the propositions laid down in Narayanan 's case (supra) do not apply to the facts of the present case especially since, in a complaint under section 138 of the NI Act, the presence of the complainant is not necessary at the stage of taking cognizance. It was further pointed out that petitioner had earlier filed Crl.M.C Crl.M.C No.2256/23 5 2024:KER:95315 No.5438/2022 and had later, withdrawn the said petition on 27-10- 2022 without being given the liberty to file a fresh petition and hence he is estopped from filing this petition.

6. While considering the rival contentions, it needs to be borne in mind that a power of attorney holder is a competent person to file a complaint under section 138 of the NI Act. The aforesaid proposition has already been settled by various judgments. A Magistrate is entitled to issue process to the accused on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted in support of the complaint. If an affidavit is filed in support of the complaint, before issuance of the process under Section 200 of the Cr.P.C, the Magistrate has a discretion and is not bound to call upon the complainant to be examined to decide whether or not to issue process on the complaint under Section 138 of the NI Act. The Magistrate can rely upon the affidavit filed in support of the complaint under Section 138 of the NI Act.

7. In A.C. Narayanan v. State of Maharashtra and Another (2014) 11 SCC 790] the Supreme Court laid down the following propositions:

8. In the instant case, the petition to quash the complaint was filed immediately after the summons was served on the accused. Neither the complainant nor the power of attorney holder has been examined. Summons have been issued based on the complaint, the documents, and the affidavit filed in support of the same.

9. There is no averment in the complaint that the power of attorney holder is aware of the transaction. Still, the copy of the power of attorney is produced along with the complaint. The cause title also refers to the fact that the complainant is represented by the power of attorney holder. Nonetheless, in the affidavit filed in support of the complaint, the power of attorney holder has affirmed that he is conversant with the facts of the case and has, in detail, narrated the circumstances that led to the issuance of the cheque in dispute. Thus the question arises is whether the averment in the affidavit about the knowledge of the facts of the case by the power of attorney holder is sufficient compliance with the requirements in Narayanan 's case (supra), without there being any averment in the complaint.

10. In MITA India Pvt. Ltd v. Mahendra Jain [2023 INSC Crl.M.C No.2256/23 7 2024:KER:95315 143 = 2023 SCC Online SC 163], in an almost similar set of facts, the Supreme Court observed that the power of attorney holder had the capacity to file the complaint and even depose. In the said case, there was no statement in the complaint that the power of attorney had knowledge of the transaction. But in the supporting affidavit, the power of attorney holder had averred that "he is fully conversant with the facts of the case". The trial court and the High Court quashed the complaint stating that there was no pleading in the complaint regarding the knowledge of the power of attorney holder of the facts. As mentioned above, the Supreme Court reversed the judgment of the High Court, after holding that the averment in the affidavit of the power of attorney holder was sufficient compliance with the requirement.

11. In the decision in In Re: Expeditious Trial of Cases Under S.138 of N.I Act, 1881 [(2021) 16 SCC 116], the Supreme Court had directed that the High Courts must issue practice directions to the Magistrates that for the conduct of enquiry under section 202 Cr.P.C, the evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit, and in suitable cases, the Magistrate can restrict the enquiry to examination of documents without insisting on the examination of witnesses.

12. The circumstances of the instant case has to be appreciated, bearing in mind the above decisions. The stage of giving evidence on oath has not yet been reached. Summons was issued to the accused after verifying the affidavit of the power of attorney holder, Crl.M.C No.2256/23 8 2024:KER:95315 which contains a specific averment that the power of attorney holder is conversant with the facts of the case. In view of the decision in MITA India Pvt Ltd 's case (supra), the said statement in the affidavit is sufficient. Thus, a power of attorney holder, who is aware of the facts of the case and has made such an averment in the affidavit, is certainly competent to lodge a private complaint, even if such an averment is absent in the complaint.

Hence, this petition to quash the complaint is dismissed, leaving open the question regarding the maintainability of a second petition under section 482 Cr.P.C.

BECHU KURIAN THOMAS JUDGE vps Crl.M.C No.2256/23 9 2024:KER:95315 APPENDIX OF CRL.MC 2256/2023 PETITIONER'S/S' ANNEXURES Annexure-A1 CERTIFIED COPY OF THE COMPLAINT IN CC 1783/2021 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT FOR NEGOTIABLE INSTRUMENTS ACT CASES THIRUVANANTHAPURAM Annexure-A2 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE COMPLAINT Annexure-A3 TRUE COPY OF THE AFFIDAVIT AND PETITION IN CRL MP NO. 5794/2018 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT FOR NEGOTIABLE INSTRUMENTS ACT CASES THIRUVANANTHAPURAM Annexure-A4 TRUE COPY OF THE ORDER DATED 30-11-2021 IN CMP 5794/2018 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT FOR NEGOTIABLE INSTRUMENTS ACT CASES THIRUVANANTHAPURAM Annexure-A5 TRUE COPY OF THE AGREEMENT DATED 18-08-2016 EXECUTED BETWEEN HITECH CONSTRUCTION GROUP AND ADRAK ENGINEERING AND CONSTRUCTION GROUP Annexure-A6 TRUE COPY OF THE REPLY NOTICE ISSUED BY THE ADVOCATE OF THE PETITIONER Annexure-A7 TRUE COPY OF ORDER TAKING COGNIZANCE Annexure-A8 TRUE COPY OF THE ORDER DATED 27-10-2022 IN CRL. MC 5438/2022