Published on: October 26, 2023 at 15:19 IST
Court: High Court of Bombay
Citation: Pradeep Mohanbay (Dr.) V. Minguel Carlos Dias (1999)
Honourable High Court of Bombay has held that a power of attorney can file a complaint under Section 138 of the Negotiable Instruments Act, 1881 but cannot depose on behalf of the complainant. It is held that neither Code of Criminal Procedure 1973 nor the said Negotiable Instruments Act, 1881contemplates that anyone can depose for and on behalf of the complainant. In such complaint, the Power of Attorney is entitled to appear as a witness and depose in respect of facts which are within his knowledge and on the basis of records.
14. It has been laid down in this judgment that the word “acts” used in Order 3, Rule 2 of the C.P.C. does not include the act of Power of Attorney holder to appear as a witness on behalf of the party, though Power of Attorney holder of a party can appear as a witness in his personal capacity and whatever knowledge he has about the case, he can state on oath, but he cannot appear as a witness on behalf of the party in the capacity of the party. Coming to the applicability of this principles in criminal law, it is well settled that any person can set the criminal law in motion and as such, a complaint regarding an offence, can be filed by any person who knows about the commission of the offence.
Nevertheless, section 142 of the said Act lays down that no cognizance of the offence under section 138 of the said Act shall be taken, except on a complaint of payee or holder in due course. Section 142 of the said Act does not contemplate that the complaint should be personally filed by the complainant. The complainant can appoint a Power of Attorney for filing the complaint in view of section 142 of the said Act. However, neither Code of Criminal Procedure nor the said Act contemplates that anyone can depose for and on behalf of the complainant.
In such complaint, the Power of Attorney is entitled to appear as a witness and depose in respect of facts which are within his knowledge and on the basis of record on which reliance is placed. In this case, it appears that no objection was taken when the Power of Attorney examined him in the case and the deposition of the Power of Attorney can be taken into consideration as a witness.
Drafted By Abhijit Mishra