U/s 138 n.i.act
Sanjay Dhiman
(Querist) 14 March 2013
This query is : Resolved
complaint was filed by prop. through SPOA, in which describing that he can file complaints U/s 138 and civil suits on behalf of me, now attorney holder uses the same in different title complaints etc. my question is, when he has only SPOA, how can he use the same in like manner.... how can i prove that he can use the same only in one complaint or civil suit, please elaborate me to satisfy the court concerned.
Devajyoti Barman
(Expert) 15 March 2013
On the basis of SPOA legal proceeding can indeed be initiated but if the constituted attorney does not have any personal knowledge of the incident he can not depose in court.
Raj Kumar Makkad
(Expert) 15 March 2013
You obtain the certified copy of the SPOA from either of the courts wherein the same has been used and do study it and thereafter raise objections wherein the same is required.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 15 March 2013
If you are accused you have lot of scope to come out of the criminal case for cheque bounce.
NI 138 is not for recovery of money but for punishment for issuing dud cheques so all benefit of doubt has to go to the accused.
Any body deposing on behalf of the complainant whether POA holder or any body else can depose only things, acts from personal knowledge and not hearsay.
Raj Kumar Makkad
(Expert) 15 March 2013
NAGPUR: In a significant observation, the Nagpur bench of Bombay High Court has stated that even a power of attorney holder can file a complaint in the cheque bounce cases. "Filing of a complaint by a power of attorney is not just permissible but is competent. The power of attorney holder who is duly and properly authorized to do so can file complaint under section 142 of Negotiable Instruments Act towards dishonour of cheque for offence under section 138," a single-judge bench of Justice AR Joshi observed while upholding the trial court verdict.
Rajkumar Sahajwani was acting as power of attorney holder on behalf of his petitioner wife Jyoti who was proprietor of Saibaba Investment having its office at Jaripatka in the city. The firm was engaged in the business of sale and purchase of shares and securities. Various transactions of sale and purchase of shares, debentures and securities were entered into between the firm and respondent Sadhu Manjwani between February 1995 and March 1996.
prabhakar singh
(Expert) 15 March 2013
Is it SPOA for 1 particular case or for filing several cases can be ascertained from it's contents and not from it's title or name.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 17 March 2013
As of now this is the CURRENT position since being the views of APEX COURT and to my knowledge it is the law since not over ruled.
THE SUPREME COURT HAS SAID=
In the case of Dr.Pradeep Mohanbay Vs. Minguel Carlos
Dias reported in 2000 Vol.102 (1) Bom.L.R.908, the Goa Bench of
the Bombay High Court held that a power of attorney can file a
complaint under Section 138 but cannot depose on behalf of the
complainant. He can only appear as a witness.
However, in the case of Humberto Luis & Anr. Vs. Floriano Armando Luis & Anr. reported in 2002 (2) Bom.C.R.754 on which
the reliance has been placed by the Tribunal in the present case, the
High Court took a dissenting view and held that the provisions
contained in order III Rule 2 of CPC cannot be construed to disentitle
the power of attorney holder to depose on behalf of his principal.
The High Court further held that the word "act" appearing in order III Rule 2 of CPC takes within its sweep "depose". We are unable to agree with this view taken by the Bombay High Court in Floriano Armando (supra).
We hold that the view taken by the Rajasthan High Court in the
case of Shambhu Dutt Shastri (supra) followed and reiterated in the
case of Ram Prasad (supra) is the correct view. The view taken in the case of Floriano Armando Luis (supra) cannot be said to have laid down a correct law and is accordingly overruled.
Raj Kumar Makkad
(Expert) 17 March 2013
The discussion of various citations by Advocate Defence is correct in view of the various judgments on the subject.
prabhakar singh
(Expert) 17 March 2013
Citation are correct.
But the query is can only one SPOA is sufficient to file several cases?
And it can be decided only after looking into the contents of SPOA and not from it's title or name is my view reiterated.
Sanjay Dhiman
(Querist) 08 April 2013
Thank u all experts, for ur kind advises, now pls let me know, if in this SPOA states specifically that he can file complaints U/S 138 and civil suits on behalf of me, whether it is right, when it is SPOA, but refers about the general acts, so looks like General Power of attorney, whether it is admissible or not for filing different title complaints?
