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TMI Blog1993 (8) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... on 142 of the Negotiable Instruments Act, 1881, through his power of attorney holder ? 2. Shri P. Vijaya Bhanu and Shri S. Vijayakumar, advocates, argued on opposite positions. A brief statement of facts in this case may be made ; A complaint has been filed in the court of a judicial magistrate of first class for the offences under Section 138 of the Negotiable Instruments Act, 1881, against the petitioner herein as the accused. One Mohammed Syed alias Veeran Haji is the complainant in the case, but the respondent herein (one Ibrahim Hajee) has signed the complaint as power of attorney holder of the complainant. The learned magistrate took cognizance of the offence and issued process to the petitioner. Now the petitioner has come before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose. The absence of such words in the statute is sufficient indication that . the Legislature did not intend so, contended the counsel. He cited sections 198 and 199 of the Code in support of the contention. As per those provisions, a court is debarred from taking cognizance of certain offences except upon a complaint made by some person aggrieved by the offence concerned. However, special provision is made in both the sections enabling another person to file the complaint on behalf of such aggrieved person under certain circumstances and on certain conditions. 6. Merely because Section 142 of the Negotiable Instruments Act, 1881, does not contain similar provisions as in sections 198 and 199 of the Code, no inference can be dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through an agent" observed the learned judge in the said decision. The above can thus be regarded as the legal position regarding the right to appoint an agent. "A power of attorney" is the instrument by which a person is authorised to act as the agent of the person granting it (vide Black's Law Dictionary). In Stroud's Judicial Dictionary, power of attorney is described as "an authority whereby one is set in the turne, stead, or place of another to act for him". Stone C.). has adopted the said definition as effective and acceptable in Ramdeo v. Lalu Natha, AIR 1937 Nagpur 65. Section 2 of the. Power of Attorney Act, 1882, empowers the donee of a power of attorney to do anything "in and with his own na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Rao Bahadur Ravulu Subba Rao v. CIT [1956] 30 ITR 163 ; AIR 1956 SC 604. But the principle enunciated in the said decision has no application to Section 142 of the Negotiable Instruments Act, 1881, since there is no requirement in it that the complaint should be made by the payee or holder in due course "personally". Parliament would have advisedly refrained from imposing such a restriction. 9. If a construction is made to the effect that no such complaint as envisaged in Section 142 of the Negotiable Instruments Act, 1881, can be made by a power of attorney holder on behalf of the payee or holder in due course, its consequence is the following ; Under Clause (b) of the proviso to Section 138 a demand for payment should b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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