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COMPLAINT BY POWER OF ATTORNEY HOLDER

Other Topics - By: - Mr. M. GOVINDARAJAN - Dated:- 27-1-2016 Last Replied Date:- 1-2-2016 - Order 3 Rule 1 and 2 Civil Procedure Code empowers the holders of power of attorney to act on behalf of the Principal. The word act employed in Order 3 Rules 1 and 2 CPC confines only to in respect of acts done by the power of attorney holder in exercise of power granted by the instrument. If the power of attorney holder has rendered some acts in pursuance of power of attorney, he may depose for the princ .....

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f himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. But in criminal law anybody can set in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. No court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. If any statute prescrib .....

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(9) TMI 948 - SUPREME COURT the Supreme Court framed the following questions: Whether a power of attorney holder can sign and file a complaint petition on behalf of the complainant? Whether the eligibility criteria prescribed under Section 142(a) of the Negotiable Instruments Act, would stand satisfied if the complaint petition itself is filed in the name of the payee or holder in due course of the cheque? Whether a power of attorney holder can be verified on oath under Section 200 of the CrPC? .....

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was introduced by an amendment in the year 2002? The Supreme Court answered for the above queries as below: Filing of complaint petition under Section138 of the Negotiable Instruments Act through a power of attorney is perfectly legal and competent; The power of attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or p .....

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complainant in support of the complaint under Section 138 of the Negotiable Instruments Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the Negotiable Instruments Act; The functions under the general power of attorney cannot be delegated to another person without specific clause .....

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n consideration thereof issued post dated cheques either his personal capacity or as the signatory of the company which got dishonored. The respondent No. 2 is the power of attorney holder of six complainants and she filed complaints on behalf of the six complainants against the appellant under Sections 138 and 142 of the Negotiable Instruments Act, 1881 before the Trial Court. The respondent 2 verified the complaint in each case of those cases as power of attorney holder of the complainants. Th .....

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ations were dismissed by the High Court. The appellant contended that the complaint filed by the power of the attorney holder were not maintainable. The Supreme Court observed that the Magistrate had taken without prima facie establishing the fact as to whether the power of attorney existed in the first place and whether it was in order. It is not in dispute that the complaint against the appellant was not preferred by the payee or the holder in due course and the statement on oath of the person .....

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e said complaint. Further, in the list of evidence there is a just a mere mention of the words at Serial No. 6 viz., power of attorney however there is no date or any other particulars of the power of attorney mentioned in the complaint. Even in the verification statement made by respondent 2 there is not even a whisper that she is filing the complaint as the power of attorney holder of the complainant. Even the order of issue of process does not mention that the Magistrate had perused any power .....

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t and is a limited company carrying on business of trading in shares. The appellant is the client of the first respondent and used to trade in shares. During the course of business, the appellant became liable to discharge ₹ 7,21,174 to the respondent company. In order to discharge the said liability he issued six cheques on different dates. All the cheques were dishonored with an endorsement funds insufficient . The company issued a legal notice to the appellant to pay the amount but he d .....

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d appeal before the High Court which convicted the appellant under Section 138 of the Act. Against the said order the appellant filed the present appeal before the Supreme Court. The Supreme Court found that the complaint was filed by Shri V. Shankar Prasad claiming to be general power of attorney of the complainant company. Subsequently Shri Ravinder Singh gave the evidence on behalf of the company under the general power of attorney given by the company. The complaint was not signed either by .....

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