The Apex Court in a recent decision has reiterated that a complaint under Section 138 of the Negotiable Instruments Act filed by a Power of Attorney holder would be maintainable in law.
This was held in the matter of SK Tamisuddin vs. Joy Joseph Creado [Criminal Appeal 2732 of 2012] decided on 28.09.2018.
In this case, the Special Power of Attorney had filed the complaint on behalf of Sairabee. During the pendency of the case, Sairabee died. Application filed by Power of Attorney holder who was also the son to continue the prosecution as her legal heir was allowed by the trial court. However, the High Court quashed the proceedings on the ground that the initiation of the complaint by the Special Power of Attorney of Sairabee was invalid and that the continuance of the proceedings after the death of Sairabee by the said Power of Attorney would not be permissible.
The Apex Court reiterating the ratio in the landmark judgment A.C. Narayanan vs. State of Maharashtra and Another, wherein it was observed after a conjoint reading of Sections 138, 142 and 145 of the N.I. Act as well as Section 200 of the Code that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint and also it is open to the Magistrate, if he thinks fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint
It was held that complaint filed by the appellant on behalf of Sairabee (as the complainant) would not be invalid in law and that after the death of Sairabee, the competence of the legal heir of a person aggrieved to continue a criminal complaint cannot be doubted.