Bombay High Court

PRABHAVATI SUMATILAL PATNIversusM.M.SHAH CONSULTANTS LTD. and ORS.

Decided: 22 September 2026
Disposal: Disposed Off

Holding

The Sessions Judge’s order setting aside the magistrate’s issuance of process is upheld; a private complainant must appear personally and a Power of Attorney holder cannot depose in a Section 138 case.

Summary

Petitioner Prabhavati Patni filed a private complaint under Section 138 of the Negotiable Instruments Act against M.M. Shah Consultants Ltd for dishonoured cheques after paying for a residential plot. The magistrate issued process, but the respondent appealed and the Sessions Judge set aside the magistrate’s order, holding that only the payee or holder in due course may file a complaint and that a constituted Power of Attorney holder cannot appear or depose for a private complainant. The petitioner challenged this decision in a writ petition, arguing that the Supreme Court in A.C. Narayanan v. State of Maharashtra permits a Power of Attorney to file the complaint. The High Court examined Sections 138, 142, 142A of the NI Act and Section 200 of the CrPC, concluding that the Sessions Judge was correct and that a private complainant must personally appear. Consequently, the writ petition was dismissed and the Sessions Judge’s order upheld; the accompanying criminal applications to record the deceased petitioner’s heirs were also allowed and disposed.

Issues considered

Whether a constituted Power of Attorney holder can file or appear in a complaint under Section 138 of the Negotiable Instruments Act on behalf of a private complainant.
Whether the magistrate was justified in issuing process despite the absence of the complainant’s personal appearance.
Whether Section 142A of the Negotiable Instruments Act bars cognizance of a complaint filed through a Power of Attorney.
Whether the order of the Sessions Judge setting aside the magistrate’s process should be affirmed.

Legislation cited

Code of Criminal Procedure, 1973 — s. 200
Negotiable Instruments Act, 1881 — s. 138, 142, 142A, 145

Subjects

Negotiable Instruments Act
Section 138
Section 142
Power of Attorney
Private complaint
Cheque dishonour
Criminal procedure
Writ petition
Magistrate process

Judgment

WP.1200.2004.doc

Ajay

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 1200 OF 2004

Prabhavati Sumatilal Patni .. Petitioner
Versus
M.M. Shah Consultants Ltd & Ors. .. Respondents

WITH
CRIMINAL APPLICATION NO. 568 OF 2018

Prabhavati Sumatilal Patni
(since deceased through legal heirs)
Rajendra Sumatilal Patni and Ors. .. Applicants
Versus
M.M. Shah Consultants Ltd & Ors. .. Respondents

WITH
CRIMINAL APPLICATION NO. 569 OF 2018

Prabhavati Sumatilal Patni
(since deceased through legal heirs)
Rajendra Sumatilal Patni and Ors. .. Applicants
Versus
M.M. Shah Consultants Ltd & Ors. .. Respondents

IN
WRIT PETITION NO. 1200 OF 2004

Prabhavati Sumatilal Patni .. Petitioner
Versus
M.M. Shah Consultants Ltd & Ors. .. Respondents
....................
 Mr. K.P. Shah, Advocate for Petitioner and Applicants.
 Ms. Aastha Dadhich i/by Mr. Prasad Kulkarni, Advocate for
Respondent Nos. 1 & 2
 Ms. Sangeeta E. Phad, APP for Respondent - State
......…...........
CORAM : MILIND N. JADHAV, J.
DATE : SEPTEMBER 22, 2026.
P.C.:
1. Heard Mr. Shah, learned Advocate for Petitioner and

1 of 7
WP.1200.2004.doc

Applicants, Ms. Dadhich, learned Advocate for Respondent No.1 & 2

and Ms. Phad, learned APP for Respondent - State.

2. At the outset it is seen that the present Writ Petition is filed

and admitted in the year 2004 and thereafter never taken for hearing

until until today. In the interregnum, original Petitioner expired and

Criminal Application No.568 of 2018 was filed seeking to bring her

legal heirs on record and condonation of delay of 10 years and 129

days for the same however inadvertently names of the legal heirs were

not mentioned therefore Criminal Application No.569 of 2018 was

filed seeking the same reliefs mentioning the names of her legal heirs

therein. Hence, in that view of the matter Criminal Application No.568

of 2018 and Criminal Application No.569 of 2018 are both allowed for

the bringing the legal heirs of the deceased Petitioner on record. Delay

of 10 years 129 days stands condoned, in view of the fact that the

Petition was admitted in the year 2004. Since, both Criminal

Applications are allowed, Petitioner’s Advocate shall carry out

necessary amendments in the court’s record within the period of 2

weeks from the date of uploading of this order. Reverification stands

dispensed with. Department shall permit the said amendments to be

carried out as directed. Writ Petition is taken for hearing forthwith.

Both Criminal Applications are allowed and disposed.

3. The present Petition challenges the order dated 28.08.2003

passed by Additional Sessions Judge, Pune in Criminal Revision

2 of 7
WP.1200.2004.doc

Application No. 712 of 2002. The Petitioner is Respondent No.1

therein.

4. Briefly stated Petitioner is the original Complainant. She

filed private complaint against Respondent No.1 under Section 138 of

Negotiable Instruments Act, 1881 (for short “NI Act”). Respondent

No.1 floated a scheme for sale of residential plot in Survey No. 125 at

Aundh in Pune. They agreed for sale of plot No. 14 to Petitioner.

Petitioner paid consideration of Rs.3.8 lakhs to Respondent No.1. The

plot was not handed over to the Petitioner. Therefore Respondent No.1

handed over 2 cheques to her. When Petitioner deposited these 2

cheques, they were dishonored. Petitioner felt cheated and therefore

approached Magistrate with a private complaint of cheating and

sought issuance of process.

4.1. Magistrate’s order is dated 14.06.2002. It allows Petitioner's

application for issuance of process. This order is challenged by

Respondent No.1 before Sessions Court in Revision. By order dated

28.08.2003, Revision is allowed. Order passed by the Magistrate is set

aside. Hence the present Petition.

5. Mr. Shah, learned Advocate for Petitioner has argued that

the impugned order is incorrectly passed on a technical plea of

applicability of Section 142 of the NI Act. Notwithstanding the fact that

grievance of the Petitioner – Complainant was about dishonour of

cheques and therefore it ought to have been allowed by the learned

3 of 7
WP.1200.2004.doc

Sessions Court.

6. He would vehemently submit that a conjoint reading of

Sections 138, 142 and 145 of the NI Act as well as Section 200 of Code

Criminal Procedure, 1973 it is open to the Magistrate to issue process

on the basis of the contents of the complaint and the documents in

support thereof. He would submit that once the Constituted Attorney

files application under Section 145 of NI Act in a cheque dishonor case

it would be a matter of discretion of the Magistrate to issue process by

relying upon the Affidavit of the Constituted Attorney and examination

of the Complainant stands dispense with.

7. He would refer to and rely upon the decision of the Supreme

Court in the case of A.C Narayanan vs State of Maharashtra and Anr. 1

reported in 2014 in support of his above submissions. While drawing

my attention to paragraph No.43 of the decision he would contend

that filing of Complaint by a Constituted Power Of Attorney under

Section 138 of NI Act is perfectly legal it is permissible and for

issuance of process.

8. Hence, he would submit that the order of learned Sessions

Judge be set aside and the order of the learned Magistrate passed

below the Exhibit–21 be restored along with the original complaint. I

have heard the learned Advocate for Petitioner and Respondent.

9. It is prima facie seen that Complainant is a private person
1 (2014) 11 Supreme Court Cases 790

4 of 7
WP.1200.2004.doc

and not a juristic person. My attention is drawn to Section 142A of NI

Act which read thus:-

(1)Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 or any judgment, decree, order or direction of any
court, all cases transferred to the court having jurisdiction under sub-
section (2) of section 142, as amended by the Negotiable Instruments
(Amendment) Ordinance, 2015, shall be deemed to have been
transferred under this Act, as if that sub-section had been in force at all
material times.
(2)Notwithstanding anything contained in sub-section (2) of section
142 or sub-section (1), where the payee or the holder in due course, as
the case may be, has filed a complaint against the drawer of a cheque in
the court having jurisdiction under sub-section (2) of section 142 or the
case has been transferred to that court under sub-section (1) and such
complaint is pending in that court, all subsequent complaints arising out
of section 138 against the same drawer shall be filed before the same
court irrespective of whether those cheques were delivered for
collection or presented for payment within the territorial jurisdiction of
that court.
(3)If, on the date of the commencement of the Negotiable Instruments
(Amendment) Act, 2015, more than one prosecution filed by the same
payee or holder in due course, as the case may be, against the same
drawer of cheques is pending before different courts, upon the said fact
having been brought to the notice of the court, such court shall transfer
the case to the court having jurisdiction under sub-section (2) of section
142, as amended by the Negotiable Instruments (Amendment)
Ordinance, 2015, before which the first case was filed and is pending, as
if that sub-section had been in force at all material times.

10. The learned Sessions Judge has in view of the

aforementioned specific provision set aside the order of the issuance of

process by Magistrate. There is a stark difference between an

individual and a juristic person. There are divergent views of the High

Court on authority of a Power of Attorney holder appearing, pleading

and acting on behalf of the original party. There is no doubt that a

juristic person needs to be represented by its authorised representative,

for example, in the case of a Company. However question before Court

is whether in a criminal case can a Constituted Power of Attorney of

holder appear for and on behalf of the Complainant and depose in the

5 of 7
WP.1200.2004.doc

witness box on behalf of the original Complainant as a witness on

behalf of the original Complainant about facts which are to the

exclusive knowledge of the original Complainant.

11. A complaint is filed under Section 138 of NI Act has to be

presented before the Court by the payee and holder of the cheque

himself. In such a case the payee and holder of the cheque must

examine himself in support of his Petition. What Section 142 of NI Act

provides is for only 2 categories of persons for the purpose of Court to

take cognizance for offence punishable under Section 138 of NI Act.

Question that would arise is whether the Power of Attorney holder in a

Section 138 case can depose before the Magistrate for the cognizance

to be taken in view of issue of he having personal knowledge about the

facts of the case which the original Complainant is required to depose.

Plain reading of Section 142A of NI Act would show that Power of

Attorney holder is not competent to depose upon the transaction that

took place between payee and drawer of cheque and therefore the

learned Sessions Judge has correctly opined in paragraph Nos.8 and 9

about the applicability of Section 142A of NI Act by correctly

interpreting the same. Paragraph Nos.8 and 9 are reproduced below

for reference:-

"8. I have carefully considered the contentions canvassed by both
the sides. I have also carefully gone through the ratio of both the
rulings (cited supra). I find that the Judgment delivered by the
Andhra Pradesh high Court is that of Division bench, whereas, the
Judgment delivered by Karnataka High Court is of Single Bench.
Moreover, no ruling from our High Court is brought to my notice

6 of 7
WP.1200.2004.doc

on this point.

9. In the instant case, I find that admittedly the complainant is a
private person and is not a company which is a jurisdictic person. It
is well settled that in case of company which is a Juristic
personality, the complaint can be filed for and on behalf of
company by some natural person who represents the company.
However when complainant himself is a natural person, then as per
the provisions of Section 142(a) of Negotiable Instruments Act, no
court shall take cognizance of any complaint u/s 138 of Negotiable
Instruments Act, except upon a complaint in writing made by the
payee or holder in due course. In view of specific provision of
section 142 of Negotiable Instruments Act, I find that the learned
Magistrate ought to have allowed the application and ought to have
dismissed the complaint."

12. I find no reason to interfere with the order dated 28.08.2003

as the same has been correctly passed in the facts and circumstances of

the present case. I concur and agree with the said reasons returned in

the order dated 28.08.2003 and the said order is upheld and

confirmed.

13. Resultantly, the Writ Petition fails. I am informed by the

parties that civil proceeding qua the aforesaid lis between the parties is

still pending before the Civil Court. Those proceedings will

undoubtedly determine the substantive right of the parties otherwise

with regard to their dispute.

14. In view of the above observations and findings Writ Petition

is dismissed.

15. Both Criminal Application No.568 of 2018 and Criminal

Application No. 569 of 2018 are also accordingly disposed.

[ MILIND N. JADHAV, J. ]
Ajay
Digitally signed by
AJAY AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2026.09.22
12:06:46 +0530
7 of 7

Continue reading with your account

Checking your session…

Lawyer court records for this case

Associated through the court’s case reference.