Kumaran 17 September 2015

Cheque bounce - poa

Dear Experts -

Can we give a Power of Attorney to my lawyer to file a Sec 138 NI(Cheque bounce) case if Im out of country?

If not to my lawyer, can I give POA to my family member/friend

Thank You

Kumar

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9 Replies

Advocate Kappil Cchandna (Expert Bail & Criminal Defence Lawyer at Delhi Supreme Court of India) 17 September 2015

Sir,

I feel if sometimes you were not avialable for the hearing or date fixed the your lawyer can move an application of exemption on your behlaf, but I feel you need to be present when the evidence and cross examination is required to be done.

Warm Regards

Kapil Chandna Advocate

9899011450

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Kumaran 17 September 2015

Thank You Kapil Ji, but I found the below article in the internet.

Power of Attorney holder can also file cheque bounce cases: Supreme Court

PTI Sep 15, 2013, 11.08AM IST

(A three-judge bench headed…)

NEW DELHI: The Supreme Court has held that a criminal complaint in a cheque bounce case can be filed and pursued by a person who holds a power of attorney (PoA) on behalf of the complainant.

A three-judge bench headed by Chief Justice P Sathasivam gave the "authoritative" pronouncement on the issue, referred to it by a division bench in view of conflicting judgements of some high courts and the apex court.

"We are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the Negotiable Instruments Act (which deals with cheque bounce cases)," the bench, also comprising justices Ranjana Prakash Desai and Ranjan Gogoi, said.

The bench, in its judgement, said, "...we clarify the position and answer the questions in the following manner:

"Filing of complaint petition under Section 138 of Negotiable Instruments Act through PoA holder is perfectly legal and competent."

It said the PoA holder can depose and verify on oath before the court in order to prove the contents of the complaint.

"However, the PoA holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the transactions," it added.

The PoA holder, however, cannot file the cheque bounce case under his own name and such cases can be filed by the complainants through the PoA holders.

Responding to another legal question raised in the reference by a two-judge bench, it said, "the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant ...".

Source:https://articles.economictimes.indiatimes.com/2013-09-15/news/42083670_1_cheque-bounce-case-section-138-holder

Kumaran 17 September 2015

So my question is do I need to be present when the evidence and cross examination is required to be done?

Kumaran 22 September 2015

Could anyone please clarify my doubts?

BHRIGU DATTA 9475352677 (PRIVATE PRACTICE) 23 September 2015

you may give power of attorney to any body

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YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com) 24 September 2015

POA holder can file the complaint but can not give evidence on behhalf of the master.

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Kumaran 25 September 2015

Found the below snippet

Kumaran 26 September 2015

File Number = 657

KERALA HIGH COURT

Negotiable Instruments Act, 1881, Section 138 -- Dishonour of cheque - Power of attorney can file the complaint on behalf of payee or holder-in-due-course.

Criminal Procedure Code, 1973, Section 302, Power of Attorney Act, 1882, Section 2, Criminal Procedure Code, 1973, Section 302, Negotiable Instruments Act, 1881, Section 138 -- Dishonour of cheque - A duly authorised power of attorney can file complaint on behalf of the payee or holder-in-due-course - So long as power of attorney does not seek to conduct prosecution on behalf of payee or holder in due course, question of seeking permission in that behalf u/s 302 Cr.P.C. or the question as to who should seek such permission do not arise.

Power of Attorney Act, 1882, Section 2, Criminal Procedure Code, 1973, Section 302, Power of Attorney Act, 1882, Section 2, Negotiable Instruments Act, 1881, Section 138 -- Dishonour of cheque - Power of attorney can give evidence in Court on behalf of payee or holder-in-due-course, if facts necessary to secure conviction are within his personal knowledge.