A.C. NARAYANANversusSTATE OF MAHARASHTRA & ANR.

                         [2013] 11 S.C.R. 80


A                         AC. NARAYANAN
                                v.
                STATE OF MAHARASHTRA & ANR.
                 (Criminal Appeal No. 73 of 2007)
                       SEPTEMBER 13, 2013
B
       [P. SATHASIVAM, CJI, RANJANA PRAKASH DESAI
                  AND RANJAN GOGOi, JJ.]

        Negotiable Instruments Act, 1881- ss. 138, 142 and 145
C - Filing of complaint petition by Power of Attorney holder -
   Validity- Whether a Power of Attorney holder can be verified
  on oath - Whether specific averments as to the knowledge
  of the Power of Attorney holder in the impugned transaction
  must be explicitly asserted in the complaint - Effect of s. 145
o - Held: Filing of complaint petition uls. 138 through power of
  attorney is perfectly legal and competent - The Power of
  Attorney holder can depose and verify on oath before the
  Court in order to prove the contents of the complaint -
  However, the power of attorney holder must have witnessed
E the transaction as an agent of the payee/holder in due course
  or possess due knowledge regarding the transaction - It is
  required by the complainant to make specific assertion as to
  the knowledge of the power of attorney holder in the said
  transaction explicitly in the complaint - Power of attorney
  holder who has no knowledge regarding the transaction
F cannot be examined as a witness in the case - In the light of
  s. 145, it is open to the Magistrate to rely upon the verification
  in the form of affidavit filed by the complainant in support of
  the complaint uls. 138 and the Magistrate is neither
G mandatorily obliged to call upon the complainant to remain
  present before the Court, nor to examine the complainant
  upon oath for taking the decision whether or not to issue
  process on the complaint uls. 138 - The functions under the
  general power of attorney cannot be delegated to another

H                                 80
  A.C. NARAYANAN v. STATE OF MAHARASHTRA               81


person without specific clause permitting the same in the    A
power of attorney - Nevertheless, the general power of
attorney itself can be cancelled and be given to another
person - Code of Criminal Procedure, 1973 - s.200.

    In terms of a reference order, the following questions   8
arose for consideration before this Court:
    (i) Whether a Power of Attorney holder can sign and
    file a complaint petition on behalf of the
    complainant?/ Whether the eligibility criteria
    prescribed by Section 142(a) of the Negotiable           C
    Instruments Act, 1881 would stand satisfied if the
    complaint petition itself is filed in the name of the
    payee or the holder in due course of the cheque?
    (ii) Whether a Power of Attorney holder can be           D
    verified on oath under Section 200 CrPC?
    (iii) Whether specific averments as to the knowledge
    of the Power of Attorney holder in the impugned
    transaction must be explicitly asserted in the
    complaint?                                               E

    (iv) If the Power of Attorney holder fails to assert
    explicitly his knowledge in the complaint then can
    the Power of Attorney holder verify the·complaint on
    oath on such presumption of knowledge?                   F

    (v) Whether the proceedings contemplated under
    Section 200 CrPC can be dispensed with in the light
    of Section 145 of the Negotiable Instruments Act
    which was introduced by an amendment in the year         G
    2002?

    Answering the Reference, the Court
     HELD: 1.1. There is no dispute that complaint has to
be filed by the complainant as contemplated by Section       H
    82      SUPREME COURT REPORTS            [2013] 11 S.C.R.


A 200 CrPC, but the said Section does not create any
  embargo that the attorney holder or legal
  representative(s) cannot be a complainant. [Para 20] [103-
  A-B]
       1.2. The power of attorney holder is the agent of the
8 grantor. When the grantor authorizes the attorney holder
  to initiate legal proceedings and the attorney holder
  accordingly initiates such legal proceedings, he does so
  as the agent of the grantor and the initiation is by the
  grantor represented by his attorney holder and not by the
C attorney holder in his personal capacity. However, the
  power of attorney holder cannot file a complaint in his
  own name as if he was the complainant. In other words,
  he can initiate criminal proceedings on behalf of the
  principal. [Para 21] [103-B-C, E]
D
       1.3. From a conjoint reading of Sections 138, 142 and
  145 of the Negotiable Instruments Act, 1881 as well as
  Section 200 CrPC, it is clear that it is open to the
  Magistrate to issue process on the basis of the contents
E of the complaint, documents in support thereof and the
  affidavit submitted by the complainant in support of the
  complaint. Once the complainant files an affidavit in
  support of the complaint before issuance of the process
  under Section 200 of the Code, it is thereafter open to the
F 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. However, it is a matter of
  discretion and the Magistrate is not bound to call upon
  the complainant to remain present before the Court and
G to examine him upon oath for taking decision whether or
  not to issue process on the complaint under Section 138
  of the N.I. Act. For the purpose of issuing process under
  Section 200 CrPC, it is open to the Magistrate to rely upon
  the verification in the form of affidavit filed by the
H complainant in support of the complaint under Section
  A.C. NARAYANAN v. STATE OF MAHARASHTRA                 83


138 of the N.I. Act. It is only if and where the Magistrate,   A
after considering the complaint under Section 138 of the
N.I. Act, documents produced in support thereof and the
verification in the form of affidavit of the complainant, is
of the view that examination of the complainant or his
witness(s) is required, the Magistrate may call upon the       B
complainant to remain present before the Court and
examinl! the complainant and/or his witness upon oath
for taking a decision whether or not to issue process on
the complaint under Section 138 of the N.I. Act. [Para 22]
[103-F-H; 104-A-D]                                             C

     1.4. 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 N.I. Act. An exception to the above is when the power
of attorney holder of the complainant does not have a          D
personal knowledge about the transactions then he
cannot be examined. However, where the attorney holder
of the complainant is in charge of the business of the
complainant-payee and the attorney holder alone is
personally aware of the transactions, there is no reason       E
why the attorney holder cannot depose as a witness.
Nevertheless, an explicit assertion as to the knowledge
of the Power of Attorney holder about the transaction in
question must be specified in the complaint. [Para 23]
[104-D-G]                                                      F

     1.5. The attorney holder cannot file a complaint in his
own name as if he was the complainant, but he can
initiate criminal proceedings on behalf of his principal.
Where the payee is a proprietary concern, the complaint        G
can be filed (i) by the proprietor of the proprietary
concern, describing himself as the sole proprietor of the
"payee"; (ii) the proprietary concern, describing itself as
a sole proprietary concern, represented by its sole
proprietor; and (iii) the proprietor or the proprietary
                                                               H
    84      SUPREME COURT REPORTS            [2013) 11 S.C.R.


A concern represented by the attorney holder under a
  power of attorney executed by the sole proprietor. [Para
  24] [104-G-H; 105-A-B]
       1.6. The attorney holder can sign and file a complaint
  on behalf of the complainant-payee. However, whether
8 the power of attorney holder will have the power to further
  delegate the functions to another person will completely
  depend on the terms of the general power of attorney. As
  a result, the authority to sub-delegate the functions must
  be explicitly mentioned in the general power of attorney.
C Otherwise, the sub-delegation will be inconsistent with
  the general power of attorney and thereby will be invalid
  in law. Nevertheless, the general power of attorney itself
  can be cancelled and be given to another person. [Para
  25) {1 05-D-F]
D
       M. M. T. C. Ltd. and Anr. vs. Medchl Chemicals and
  Pharma (P) Ltd. and Anr., (2002) 1 SCC 234: 2001 (5) Suppl.
  SCR 265; Janki Vashdeo Bhojwani and Anr. vs. lndusind
  Bank Ltd. and Ors. (2005) 2 SCC 217: 2004 (6) Suppl. SCR
E 681; Vishwa Mitter of Mis Vijay Bharat Cigarette Stores,
  Dalhousie Road, Pathankot vs. O.P. Poddar and Ors. (1983)
  4 SCC 701: 1984 (1) SCR 176 and Ashwin Nanubhai Vyas
  vs. State of Maharashtra (1967) 1 SCR 807 - referred to.
      Nazir Ahmed vs. King Emperor, AIR 1936 PC 253; Rao
F Bahasur Ravula Subba Rao & Ors. vs. Commissioner of
  Income Tax, AIR 1956 SC 604: 1956 SCR 577 and Jimmy
  Jahangir Madan vs. Bolly Cariyappa Hindley (dead) by LRs,
  (2004) 12 sec 509: 2004 (5) Suppl. SCR 955 - cited.
     2. In conclusion, the questions under reference are
G answered in the following manner:
         (i) Filing of complaint petition under Section 138 of
         N.I Act through power of attorney is perfectly legal
         and competent.
H        (ii) The Power of Attorney holder can depose and
A.C. NARAYANAN v. STATE OF MAHARASHTRA                   85


 verify on oath before the Court in order to prove the        A
 contents of the complaint. However, the power of
 attorney holder must have witnessed the transaction
 as an agent of the payee/holder in due course or
 possess due knowledge regarding the said
 transactions.                                                B
 (iii) It is required by the complainant to make specific
 assertion as to the knowledge of the power of
 attorney holder in the said transaction explicitly in the
 complaint and the power of attorney holder who has
 no knowledge regarding the transactions cannot be            C
 examined as a witness in the case.
 (iv) In the light of section 145 of N.i Act, it is open to
 the Magistrate to rely upon the verification in the
 form of affidavit filed by the complainant in support        o
 of the complaint under Section 138 of the N.1 Act and
 the Magistrate is neither mandatorily obliged to call
 upon the complainant to remain present before the
 Court, nor to examine the complainant of his witness
 upon oath for taking the decision whether or not to          E
 issue process on the complaint under Section 138 of
 the N.I. Act.

 (v) The functions under the general power of attorney
 cannot be delegated to another person without
 specific clause permitting the same in the power of          F
 attorney. Nevertheless, the general power of attorney
 itself can be cancelled and be given to another
 person. [Para 26) [105-G-H; 106-A-E]
                 Case Law Reference:                          G
 2001 (5) Suppl. SCR 265 referred to            Para 6
 2004 (6 ) Suppl. SCR 681 referred to           Para 6
 AIR 1936 PC 253              cited             Para 8
                                                              H
    86       SUPREME COURT REPORTS               [2013] 11 S.C.R.


A        1956 SCR 577                  cited           Para 8
         2004 (5) Suppl. SCR 955 cited                 Para 8
         1984 (1) SCR 176              referred to     Para 13
         (1967) 1 SCR 807              referred to     Para 19
B
        CRIMINAL APPELLATE JURISDICTION :.Criminal Appeal
    No. 73 of 2007.

         From the Judgment & Order dated 12.08.2005 of the High
C   Court of Judicature at Bombay in Criminal Applications No.
    797, 798, 799, 801, 802 & 803 of 2002.

                                WITH

    Crl. A.No. 1437 of 2013.
D
        lndu Malhotra, Kush Chaturvedi, Vivek Jain, Nishtha
    Kumar, Namrata Sood, Vikas Mehta, Annam D.N. Rao.
    Shankar Chillarge, Asha Gopalan Nair, Saurabh Kumar Tuteja,
    Tarun Verma, Niraj Sharma, Mayur R. Shah, Dr. Kailash
E   Chandra for the appearing parties.

         The Judgment of the Court was delivered by

         P. SATHASIVAM, CJI.

F   Criminal Appeal No. 73 of 2007

       1. This appeal is filed against the final common judgment
  and order dated 12.08.2005 passed by the High Court of
  Judicature at Bombay in Criminal Application Nos. 797, 798,
  799, 801, 802 and 803 of 2002 whereby the High Court
G dismissed the applications filed by the appellant herein against
  the order of issuance of process against him for the offence
  punishable under Sections 138 and 142 of the Negotiable
  Instruments Act, 1881 (in short 'the N.I. Act) by the IXth
  Additional Chief Metropolitan ·Magistrate at Bandra, Mumbai
H
  A.C. NARAYANAN v. STATE OF MAHARASHTRA                87
             [P. SATHASIVAM, CJI.]
in Complaint Case Nos. 292/S/1998, 293/S/1998, 297 /S/        A
1998, 298/S/1998, 299/S/1998 and 300/S/1998.

    2. Brief facts :

     (a) The appellant is the Vice-Chairman and Managing
Director of the Company by name M/s Harvest Financials Ltd.   B
having its registered office at Bombay. Under a scheme of
investment, the appellant collected various amounts from
various persons in the form of loans and in consideration
thereof issued post-dated cheques either in his personal
capacity or as the signatory of the Company which got         C
dishonoured.

     (b)On 16.12.1997, Mrs. Doreen Shaikh, Respondent No.2
herein, the Power of Attorney Holder of six complainants,
namely, Mr. Yunus A. Cementwalla, Smt. Fay Pinto, Mr. Mary 0
Knoll Drego, Smt. Evelyn Drego, Mr. Shaikh Anwar Karim Bux
and Smt. Gwen Piedade filed Complaint Case Nos. 292/S/
1998, 293/S/1998, 297/S/1998, 298/S/1998, 299/S/1998 and
300/S/1998 respectively against the appellant herein under
Sections 138 and 142 of the N.I. Act before the IXth E
Metropolitan Magistrate at Sandra, Mumbai. On 20.02.1998,
Respondent No. 2 herein verified the complaint in each of these
cases as Power of Attorney Holder of the complainants. Vide
order dated. 04.04.1998, the Additional Chief Metropolitan.
Magistrate, issued process against the appellant under Section
204 of the Code of Criminal Procedure, 1973 (in short 'the F
Code') for the offences punishable under Sections 138 and 142
of the N. I. Act.

     (c) Being aggrieved of the issuance of the process, on
13.01.2000, the appellant herein moved an application for     G
discharge/recall of process in each of the complaints. Vide
common order dated 29.11.2000, the Additional Chief
Metropolitan Magistrate, IXth Court, Sandra, Mumbai
dismissed the applications filed by the appellant herein.
                                                              H
    88       SUPREME COURT REPORTS               [2013] 11 S.C.R.


A        (d) Being aggrieved of the said order, the appellant herein
    preferred applications being Criminal Application Nos. 797,
    798, 799, 801, 802 and 803 of 2002 before the High Court for
    quashing of the complaints. By impugned order dated
    12.08.2005, the said applications were dismissed by the High
B   Court.

        (e) Against the said order, the appellant has preferred this
    appeal by way of special leave before this Court.

    Criminal Appeal 1473/2013 @ S.L.P.(Crl.) No. 2724 of
c   2008:

         3. Leave granted.

         4. This appeal is directed against the judgment and order
    dated 19.09.2007 passed by the High Court of Judicature,
D   Andhra Pradesh at Hyderabad in Criminal Appeal No. 578 of
    2002 whereby the High Court allowed the appeal filed by Mis
    Surana Securities Ltd.-Respondent No.1 herein (the
    complainant) against the judgment and order dated 30.10.2001
    passed by the Court of XVIII Metropolitan Magistrate,
E   Hyderabad in C.C. No. 18 of 2000 dismissing the complaint
    and acquitting the accused for the offence under Section 138
    of the N.I. Act.

         5. Brief facts
F
         (a) Respondent No.1 herein-the complainant is a limited
    company carrying on the business of trading in shares. The
    appellant herein is a client of the respondent-Company and
    used to trade in shares. During the course of business, the
    appellant became liable to pay an amount of Rs. 7,21,174/-
G   towards the respondent-Company. The appellant, in order to
    discharge the said liability, issued six cheques amounting to
    Rs.1,00,000/- each and another cheque for Rs.1,21, 174/-
    drawn on Andhra Bank on different dates. When the first six
    cheques were presented for encashment on 18.09.1997, the
H
  A.C. NARAYANAN v. STATE OF MAHARASHTRA                    89
             [P. SATHASIVAM, CJI.]
same got dishonoured with an endorsement 'funds insufficient'.    A
Upon receiving the said information, the respondent-Company
issued a legal notice tb the appellant calling upon him to pay
the amounts due but he did not pay the same.

     (b) The Board of Directors of the respondent-Company,        B
by a resolution, authorized its Managing Director to appoint an
agent to represent the Company. Pursuant thereto, one Shri V.
Shankar Prasad was appointed as an agent by executing a
General Power of Attorney. Later, he was substituted by one
Shri Ravinder Singh under another General Power of Attorney.
                                                                  c
     (c) Respondent-company filed a complaint under Section
138 of the N.I. Act being CC No. 1098 of 1997 in the Court of
Xlth Metropolitan Magistrate, Secunderabad. Subsequently,
vide order dated 03.05.2000, the said complaint was
transferred to the Court of XVIII Metropolitan Magistrate,        D
Hyderabad and was registered as C.C. No. 18 of 2000. By
order dated 30.10.2001, the Metropolitan Magistrate dismissed
the complaint filed by the respondent-Company under Section
138 of the N.I. Act.
                                                                  E'
    (d) Aggrieved by the said order, respondent-company filed
an appeal being Criminal Appeal No. 578 of 2002 before the
High Court of Judicature, Andhra Pradesh at Hyderabad. By
impugned order dated 10.09.2007, learned single Judge of the
High Court allowed the appeal and set aside the order dated
                                                                  F
30.10.2001 passed by the XVIII Metropolitan Magistrate,
Hyderabad and convicted the appellant herein under Section
138 of the N.I. Act.

     (e) Being aggrieved by the order passed by the High
Court, the appellant has filed this appeal by way of special      G
leave.

    (f) By order of this Court dated 07.04.2008, this appeal
was tagged with the Criminal Appeal No. 73 of 2007 arising
                                                                  H
    90       SUPREME COURT REPORTS                [2013] 11 S.C.R.


A   out of S.L.P. (Crl.) Nos. 6703-6708 of 2005. Hence, we heard
    both the appeals together.

           6. Heard Ms. lndu Malhotra, learned senior counsel and
    Mr. Annam D.N. Rao, learned counsel for the appellants and
B   Mr.... Shankar Chillarge, Mr. Saurabh Kumar Tuteja, and Mr.
    Mayur R 'Shah, learned counsel for the respondents.

        7. On 04.01.2007, a Division Bench of this Court, on
  04.01.2007, while considering Criminal Appeal No. 73 of 2007
  (arising out of Special Leave Petition (Crl.) Nos. 6703-6708
C of 2005) with regard to the interpretation of Section 142(a) of
  the N.I. Act observed that in view of the difference of opinion
  among various High Courts as also the decisions of this Court
  in M.M. T.C. Ltd. and Anr. vs. Medchl Chemicals and Pharma
  (P) Ltd. and Anr., (2002) 1 SCC 234 and Janki Vashdeo
D Bhojwani and Anr. vs. lndusind Bank Ltd. and Ors., (2005) 2
  sec 217, the matter should be considered by a larger Bench
  in order to render an authoritative pronouncement. In view of
  the same, it is desirable to extract the entire order of reference
  which reads as under:-
E
         "Delay in fifing counter affidavit is condoned.

         Leave granted,

         Interpretation and/or application of Section 142(a) of the
F        Negotiable Instruments Act, 1881, ("NI Act") is in question
         in this appeal which arises out of a judgment and order
         dated 12.8.2005 passed by a learned Single Judge of the
         High Court of Judicature at Bombay.

         The basic fact of the matter is not in dispute.
G
         Several cheques on different dates were issued by the
         appellant herein which were dishonoured. The
         complainant executed a Special Power of Attorney on or
         about 28.11.1997, in favour of one Smt. Doreen Shaikh.
H        She fifed complaint petitions in the Court of Additional
A.C. NARAYANAN v. STATE OF MAHARASHTRA                     91
           [P. SATHASIVAM, CJI.]
 Chief Metropolitan Magistrate, Sandra, Mumbai. The              A
 complaint petitions were filed in the name of the
 respective payees of the cheques. She also filed affidavits
 in support of the averments made in the said complaint
 petitions. Cognizance of offence under Section 138 of the
      1
 NI A ct was taken against the appellant. Summons were           B
 issued. Questioning the order issuing summons by the
 learned Magistrate in exercise of his power under Section
 204 of the Code of Criminal Procedure, appellant herein
 filed criminal application before the High Court of
 Judicature at Bombay, inter alia contending that the            c
 complaint petitions filed by the Power of Attorney Holder
 was not maintainable and relying thereupon or on the
 basis thereof the learned Magistrate could not have
 issued summons. The said contention has been negatived
 by the High Court in its impugned judgment.
                                                                 D
 In the aforementioned premises interpretation of Section
 142 (a) of the NI Act comes up for consideration before
 us. We may notice that in M. M. T. C. and Anr. vs. Medchl
 Chemicals & Pharma (P) Ltd. and Anr. [2002 (1) SCC
 234], a Division Bench of this Court has opined:                E

 "This Court has, as far back as, in the case of Vishwa
 Mitter v. O.P. Poddar (1983 4 SCC 701) held that it is
 clear that anyone can set the criminal law in motion by
 filing a complaint of facts constituting an offence before a
                                                                 F
 Magistrate entitled to take cognizance~ It has been held
 that no court can decline to take cognizance on the sole
 ground that the complainant was not competent to file the
 complaint. It has been held that if any special statute
 prescribes offences and makes any special provision for         G
 taking cognizance of such offences under the statute, then
 the complainant requesting the Magistrate to take
 cognizance of the offence must satisfy the eligibility
 criterion prescribed by the statute. In the present case, the
 only eligibility criteria prescribed by Section 142 is that
 the complaint must be by the payee or the holder in due         H
    92-       SUPREME COURT REPORTS                 [2013) 11 S.C.R.


A         course. This criteria is satisfied as the complaint is in the
          name and on behalf of the appellant Company."

          However, in a later judgment in Janki Vashdeo Bhojwani
          and Anr. vs. lndusind Bank Ltd. and Ors. [2005 (2) SCC
          217), albeit in a different context, another Division Bench
B
          of this Court overruled the judgment of the Bombay High
          Court in Pradeep Mohanbay vs. Minguel Carlos Dias
          [2000 (1) Born. LR. 908), inter alia opining as follows:

          "Order 3 Rules 1 and 2 CPC empowers the holder of
c         power of attorney to 'act' on behalf of the principal. In our
          view the word 'acts' employed in Order 3 Rules 1 and 2
          CPC confines only to in respect of 'acts' done by the
          power-of-attorney holder in exercise of power granted by
          the instrument. The term 'acts' would not include deposing
D         in place and instead of the principal. In other words, if the
          power of attorney holder has rendered some 'acts' in
          pursuance of power of attorney, he may depose for the
          principal in respect of such acts, but he cannot depose for
          the principal for the acts done by the principal and not by
E         him. Similarly, he cannot depose for the principal in respect
          of the matter of which only the principal is entitled to be
          cross-examined."

          "On the question of power of attorney, the High Courts have
          divergent views. In the case of Shambhu Dutt Shastri v.
F         State of Rajasthan (1986 2 WLN 713 (Raj.) it was held that
          a general power-or-attorney holder can appear, plead and
          act on behalf of the party but he cannot become a witness
          on behalf of the party. He can only appear in his own
          capacity, No one can delegate the power to appear in the
G         witness box on behalf of himself. To appear in a witness
          box is altogether a different act. A general power-of-
          attorney holder cannot be allowed to appear as a witness
          on behalf of the plaintiff in the capacity of the plaintiff."

H         "However, in the case of Humberto Luis v. Floriano
A.C. NARAYANAN v. STATE OF MAHARASHTRA                        93
           [P. SATHASIVAM, CJI.]
 Armada Luis (2002 2 Born. CR 754) on which reliance· A
 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 3 Rule 2 CPC cannot be
 construed to disentitle the power-of-attorney holder to
 depose on behalf of his principal. The High Court further B
 held that the word 'act' appearing in Order 3 Rule 2 CPC
 takes within its sweep 'depose'. We are unable to agree
 with this view taken by the Bombay High Court in Floriano
 Armando."

 It is not in dispute that there is a conflict of opinion on this
                                                                    c
 issue amongst various High Courts, including the decision
 of Bombay High Court in Mamatadevi Prafullakumar
 Bhansali vs. Pushpadevi Kailashkumar Agrawal & Anr.
 [2005 (2) Mah. L.J. 1003] on the one hand and a decision
 of the Andhra Pradesh High Court in S.P. Sampathy vs.              0
 Manju Gupta and Anr. (2002 Crl.L.J. 2621), on the other.
 One of the questions which would arise for consideration
 is as to whether the eligibility criteria prescribed by
 Section 142(a) of the NI Act would stand satisfied if the
 complaint petition itself is filed in the name of the payee        E
 or the holder in due course of the cheque and/or whether
 a complaint petition has to be presented before the Court
 by the payee or the holder of the cheque himself.

 Another issue which would arise for consideration is as to         F
 whether the payee must examine himself in support of the
 complaint petition keeping in view the insertion of Section
 145 of the said Act (Act No.55 of 2002).

 In our opinion, in view of difference of opinion amongst           G
 various High Courts as also the decisions of this Court in
 M.M.T.C. Ltd. (supra) and Janki Vashdeo Bhojwani
 (supra), particularly in view of the fact that in the later case
 the earlier one was not noticed, an authoritative
 pronouncement is necessary to be given in this regard.
                                                                    H
    94        SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A        We, therefore, are of the opinion that the matter should be
         considered by a larger Bench."

    Before going into the factual details, rival contentions and the
    legal issues, it is useful to refer Sections 138 and 142(a) of the
    N.I. Act which read as under:
8
         "138. Dishonour of cheque for insufficiency, etc., of
         funds in the account.- Where any cheque drawn by a
         person on an account maintained by him with a banker for
         payment of any amount of money to another person from
C        out of that account for the discharge, in whole or in part,
         of any debt or other liability, is returned by the bank unpaid,
         either because of the amount of money standing to the
         credit of that account is insufficient to honour the cheque
         or that it exceeds the amount arranged to be paid from that
D        account by an agreement made with that bank, such person
         shall be deemed to have committed an offence and shall,
         without prejudice to any other provisions of this Act, be
         punished with imprisonment for a term which may be
         extended to two years, or with fine which may extend to
E        twice the amount of the cheque, or with both:

         Provided that nothing contained in this section shall apply
         unless-

         (a} the cheque has been presented to the bank within a
F        period of six months from the date on which it is drawn or
         within the period of its validity, whichever is earlier;

         (b) the payee or the holder in due course of the cheque,
         as the case may be, makes a demand for the payment of
G        the said amount of money by giving a notice in writing, to
         the drawer of the cheque, within thirty days of the receipt
         of information by him from the bank regarding the return
         of the cheque as unpaid; and

         (c} the drawer of such cheque fails to make the payment
H
  A.C. NARAYANAN v. STATE OF MAHARASHTRA                        95
             [P. SATHASIVAM, CJI.]
     of the said amount of money to the payee or, as the case         A
     may be, to the holder in due course of the cheque, within
     fifteen days of the receipt of the said notice.

     Explanation.- For the purposes of this section, "debt or
     other liability" means a legally enforceable debt or other
                                                                      8
     liability."

     142. Cognizance of offences.- Notwithstanding anything
     contained in the Code of Criminal Procedure, 1973 (2 of
     1974) -
                                                                      c
     (a) no court shall take cognizance of any offence
     punishable under section 138 except upon a complaint, in
     writing, made by the payee or, as the case may be, the
     holder in due course of the cheque;

     Xxxx xxx xxx"                                                    D

      8. In terms of Section 142 of the N.I. Act, no Court shall
take cognizance of any offence punishable under Section 138
except upon a complaint, in writing, made by the payee or, as
the case may be, the holder in due course of the cheque.              E
Learned senior counsel appearing for the appellant pointed out
that with a non obstante clause, Section 142 provides that only
two categories of persons, namely, the payee or the holder in
due course of the cheque is entitled to file a complaint under
Section 138 of the N.I. Act. According to learned senior counsel      F
for the appellant, in the first case, the verification statement of
solemn affirmation has been made by the constituted attorney
and not by the complainant. It is further pointed out that the
verification affidavit made by the constituted attorney is not on
the basis of her personal knowledge and hence, it would               G
squarely fall within the ambit of hearsay evidence and cannot
be read in evidence in a court of law. By pointing out the same,
learned senior counsel for the appellant submitted that the
constituted attorney is incompetent to depose on behalf of the
complainants. In other words, according to the appellant, the         H
    96       SUPREME COURT REPORTS               (2013] 11 S.C.R.


A Power of Attorney holder is not competent to depose about the
  transaction that took place between the payee and the drawer
  of the cheque. Learned senio(counsel also pointed out that
  Section 2 of the Power of Attorney Act, 1882 cannot override
  the specific provisions of the Statute which require that a
B particular act should be done in a particular manner (vide Nazir
  Ahmed vs. King Emperor, AIR 1936 PC 253, Rao Bahasur
  Ravula Subba Rao & Ors. vs. Commissioner of Income Tax,
  AIR 1956 SC 604 at 612-613). It was further pointed by learned
  senior counsel for the appellant that the decision in Rao
c Bahasur Ravula Subba Rao (supra) was followed in Jimmy
  Jahangir Madan vs. Bo/ly Cariyappa Hindley (dead) by LRs,
  (2004) 12 sec 509.

       9. In view of the above, learned senior counsel for the
  appellant relied on a decision of this Court in Janki Vashdeo
D Bhojwani (supra) wherein this Court held that Power of Attorney
  cannot depose for the acts done by the principal. Likewise, it
  was further held that he cannot depose for principal in respect
  of matters of which only the principal can have personal
  knowledge and in respect of which the principal is liable to be
E .cross-examined. It was further held that the Power of Attorney
  can appear only as a witness in respect of facts, which are
  within his personal knowledge.

        10. In the case on hand, it is pointed out by learned senior
F counsel for the appellant that the constituted attorney did not
  even file the Power of Attorney along with the complaint or with
  the verifying statement and in view of the same, the Magistrate
  could not have issued process on the basis of such a
  complaint. No doubt, it is true that the Power of Attorney was
G produced along with the reply to the application for discharge
  filed by the complainant after two years of the order passed by
  the Additional Chief Metropolitan Magistrate issuing summons.
  In other words, the Power of Attorney holder is at best a witness
  to the execution of the Power of Attorney and not to the contents
  of the complaint.
H
  A.C. NARAYANAN v. STATE OF MAHARASHTRA                       B7
             [P. SATHASIVAM, CJI.]
     11. Learned senior counsel for the appellant also pointed       A
out that the provision under Section 200 of the Code is
mandatory and obligatory on the part of the Magistrate to
examine the complainant. However, a perusal of the Section
makes it clear that examination of witnesses present, if any, is
optional.                                                            B

      12. Learned senior counsel for the appellant further
contended that the object of such examination is to ascertain
whether there is a prima facie case against the accused of the
commission of an offence as mentioned in the complaint and           C
also to prevent the issuance of a process on a complaint which
is either false or vexatious or intended to harass a person.

     13. Learned senior counsel for the appellant further
contended, by drawing our attention to the language of Section
200 of the Code, that the Magistrate taking cognizance of an         D
offence on complaint shall examine upon oath the complainant.
She further pointed out that where the language of an Act is
clear and explicit, it must be given effect to, whatever may be
the consequences, as has been held by this Court in Vishwa
Mitter of Mis Vijay Bharat Cigarette Stores, Dalhousie Road,         E
Pathankot vs. O.P. Poddar and Ors., (1983) 4 SCC 701. In
the said decision, this Court has held that if a special enactment
provides for a specific procedure then that particular procedure
has to be followed and hence, learned senior counsel for the
appellant contended that the provisions of Section 142 of the        F
N.I. Act regarding cognizance on the basis of a complaint filed
by the payee or the holder in due course will prevail.

    14. Learned counsel for the respondents met all the
contentions which we will discuss hereunder.
                                                                     G
    15. In terms of the reference order, the following questions
have to be decided by this Bench:

    (i) Whether a Power of Attorney holder can sign and file a
    complaint petition on behalf of the complainant?/ Whether        H
    ~8        SUPREME COURT REPORTS                   (2013) 11 S.C.R.


A        the eligibility criteria prescribed by Section 142(a) of NI Act
         would stand satisfied if the complaint petition itself is filed
         in the name of the payee or the holder in due course of
         the cheque?

B        (ii) Whether a Power of Attorney holder can be verified on
         oath under Section 200 of the Code?

         (iii) Whether specific averments as to the knowledge of the
         Power of Attorney holder in the impugned transaction must
         be explicitly asserted in the complaint?
c
         . (iv) If the Power of Attorney holder fails to assert explicitly
           his knowledge in the complaint then can the Power of
          Attorney holder verify the complaint on oath on such
          presumption of knowledge?
D        (v) Whether the proceedings contemplated under Section
         200 of the Code can be dispensed with in the light of
         Section 145 of the N.I. Act which was introduced by an
         amendment in the year 2002?

E        16. In order to find out the answers to the above and also
    to ascertain whether there is any conflict between the two
    decisions as pointed out in the referral order, let us consider
    the factual details and the ultimate dictum laid down in both the
    decisions.
F
       17. In MMTC (supra), the appellant is a Government of
  India company. Respondent No. 1 therein is also a company
  and Respondent Nos. 2 and 3 were the Directors of the
  respondent-Company. The appellant-Company and the
  respondent-Company entered into a Memorandum of
G Understanding (MoU) dated 01.06.1994 and the same was
  slightly altered on 19.09.1994. Pursuant to the MoU, two
  cheques were issued by the respondent-Company in favour of
  the appellant-Company. When both the cheques were
  presented for payment, the same got returned with an
H endorsement "payment stopped by drawer". Two notices were
  A.C. NARAYANAN v. STATE OF MAHARASHTRA                       99
             (P. SATHASIVAM, CJI.]
served by the appellant-Company on the respondent-Company.           A
As the amounts under the cheques were not paid, the
appellant-Company lodged two complaints through one
Lakshman Goel, the Manager of the Regional Office (RO) of
the appellant-Company. Respondents therein also filed two
petitions for quashing of the complaints. By the impugned order,     B
both the complaints were quashed. In the said case as well as
in the cases filed subsequently, the respondents took identical
contentions in their petitions in order to quash the complaints,
viz., that the complaints filed by Mr Lakshman Goel were not
maintainable and that the cheques were not given for any debt        c
or liability. In the impugned judgment, it was held that the
complaints filed by Mr Lakshman Goel were not maintainable.
The High Court held that it is only an Executive Director of the
Company who has the authority to institute legal· proceedings.
While holding that the reasoning given by the High Court cannot
                                                                     0
be sustained, this Court held that Section 142 of the N.I. Act
provides that a complaint under Section 138 can be made by
the payee or the holder in due course of the said cheque. This
Court further held that the complaints in question were by the
appellant-company who is the payee of the two cheques. After
finding that the Court cannot quash a complaint as stated by         E
the High Court, this Court set aside the same and directed the
trial Court to proceed with the complaints against Respondent
Nos. 1 and 3 therein in accordance with law.

     18. Now, let us consider the later decision of this Court in    F
Janki Vashdeo Bhojwani (supra). This case relates to powers
of Power of Attorney under the Code of Civil Procedure, 1908
and it was concluded that a complaint by a power of attorney
holder on behalf of original plaintiff is maintainable provided he
has personal knowledge of the transaction in question. This          G
Court further held as under:

    "12. In the context of the directions given by this Court,
    shifting the burden of proving on to the appellants that they
    have a share in the property, it was obligatory on the
                                                                     H
    100       SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A         appellants to have entered the box and discharged the
          burden by themselves. The question whether the
          appellants have any independent source of income and
          have contributed towards the purchase of the property from
          their own independent income can be only answered by
8         the appellants themselves and not by a mere holder of
          power of attorney from them. The power-of-attorney holder
          does not have personal knowledge of the matter of the
          appellants and therefore he can neither depose on his
          personal knowledge nor can he be cross-examined on
c         those facts which are to the personal knowledge of the
          principal.

          13. Order 3 Rules 1 and 2 CPC empower the holder of
          power of attorney to "act" on behalf of the principal. In our
          view the word "acts" employed in Order 3 Rules 1 and 2
D         CPC confines only to in respect of "acts" done by the
          power-of-attorney holder in exercise of power granted by
          the instrument. The term "acts" would not include deposing
          in place and instead of the principal. In other words, if the
          power-of-attorney holder has rendered some "acts" in
E         pursuance of power of attorney, he may depose for the
          principal in .respect of such acts, but he cannot depose for
          the principal for the acts done by the principal and not by
          him. Similarly, he cannot depose for the principal in respect
          of the matter of which only the principal can have a
F         personal knowledge and in respect of which the principal
          is entitled to be cross-examined."

    This Court further held thus:

          "17. On the question of power of attorney, the High Courts
G         have divergent views. In the case of Shambhu Dutt Shastri
          v. State of Rajasthan it was held that a general power-of-
          attorney holder can appear, plead and act on behalf of the
          party but he cannot become a witness on behalf of the
          party. He can only appear in his own capacity. No one can
H         delegate the power to appear in the witness box on behalf
A.C. NARAYANAN v. STATE OF MAHARASHTRA                 101
           [P. SATHASIVAM, CJI.]
  of himself. To appear in a witness box is altogether a A
  different act. A general power-of-attorney holder cannot be
  allowed to appear as a witness on behalf of the plaintiff in
  the capacity of the plaintiff.

 .18. The aforesaid judgment was quoted with approval in B
  the case of Ram Prasad v. Hari Narain. It was held that
  the word "acts" used in Rule 2 of Order 3 CPC does not
  include the act of power-of-attorney holder to appear as
  a witness on behalf of a party. Power-of-attorney holder
  of a party can appear only as a witness in his personal
  capacity and whatever knowledge he has about the case C
  he can state on oath but he cannot appear as a witness
  on behalf of the Rarty in the capacity of that party. If the
  plaintiff is unable to appear in the court, a commission for
  recording his evidence may be issued under the relevant
  pro~~s~CPC.                                                  D

  19. In the case of Pradeep Mohanbay (Dr.) v. Minguel
  Carlos Dias the Goa Bench of the Bombay High Court
  held that a power of attorney can file a complaint under
  Section 138 but can not depose on behalf of the E
  complainant. He can only appear as a witness.

  20. However, in the case of Humberto Luis v. Floriano
  Armando Luis on which 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 F
  Order 3 Rule 2 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 3 Rule 2 CPC takes within its sweep
  "depose". We are unable to agree with this view taken by G
  the Bombay High Court in Floriano Armando.

 21. We hold that the view taken by the Rajasthan High
 Court in the case of Shambhu Dutt Shastri followed and
 reiterated in tlie case of Ram Prasad is the correct view. H
    102       SUPREME COURT REPORTS                [2013] 11 S.C.R.


A         The view taken in the case of Floriano Armando Luis
          cannot be said to have laid down a correct law and is
          accordingly overruled."

        19. As noticed hereinabove, though Janki Vashdeo
  Bhojwani (supra), relates to powers of Power of Attorney holder
8
  under CPC but it was concluded therein that a plaint by a Power
  of Attorney holder on behalf of the original plaintiff is
  maintainable provided he has personal knowledge of the
  transaction in question. In a way, it is an exception to a well
C settled position that criminal law can be put in motion by anyone
  [vide Vishwa Mitter (supra)] and under the Statute, one stranger
  to transaction in question, namely, legal heir etc., can also carry.
  forward the pending criminal complaint or initiate the criminal
  action if the original complainant dies [Vide Ashwin Nanubhai
  Vyas vs. State of Maharashtra (1967) 1 SCR 807]. Keeping
D in mind various situations like inability as a result of sickness,
  old age or death or staying abroad of the payee or holder in
  due course to appear and depose before the Court in order to
  prove the complaint, it is permissible for the Power of Attorney
  holder or for the legal representative(s) to file a complaint and/
E or continue with the pending criminal 'complaint for and on
  behalf of payee or holder in due course. However, it is expected
  that such power of attorney holder or legal representative(s)
  should have knowledge about the transaction in question so as
  to able to bring on record the truth of the grievance/offence,
F otherwise, no criminal justice could be achieved in case payee
  or holder in due course, is unable to sign, appear or depose
  as complainant due to above quoted reasons. Keeping these
  aspects in mind, in MMTC (supra), this Court had taken the
  view that if complaint is filed for and on behalf of payee or
G holder in due course, that is good enough compliance with
  Section 142 of N.I. Act.

         20. The stand of the appellant in Criminal Appeal No. 73
    of 2007 is that no complaint can be filed and no cognizance of
    the complaint can be taken if the complaint is by the power of
H
  A.C. NARAYANAN v. STATE OF MAHARASHTRA                      103
             [P. SATHASIVAM, CJI.]
attorney holder, since it is against Section 200 of the Code and      A
deserves to be rejected. There is no dispute that complaint has
to be filed by the complainant as contemplated by Section 200
of the Code, but the said Section does not create any embargo
that the attorney holder or legal representative(s) cannot be a
complainant.                                                          B

     21. The power of attorney holder is the agent of the granter.
When the granter authorizes the attorney holder to initiate legal
proceedings and the attorney holder accordingly initiates such
legal proceedings, he does so as the agent of the granter and
the initiation is by the granter represented by his attorney holder   C
and not by the attorney holder in his personal capacity.
Therefore, where the payee is a proprietary concern, the
complaint can be filed by the proprietor of the proprietary
concern, describing himself as the sole proprietor of the payee,
the proprietary concern, describing itself as a sole proprietary      D
concern, represented by its sole proprietor, and the proprietor
or the proprietary concern represented by the attorney holder
under a power of attorney executed by the sole proprietor.
However, we make it clear that the power of attorney holder
cannot file a complaint in his own name as if he was the              E
complainant. In other words, he can initiate criminal
proceedings on behalf of the principal.

      22. From a conjoint reading of Sections 138, 142 and 145
of the N.I. Act as well as Section 200 of the Code, it is clear       F
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. Once the complainant files an affidavit in support of
the complaint before issuance of the process under Section 200        G
of the Code, it is thereafter 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. However, it is
a matter of discretion and the Magistrate is not bound to call
                                                                      H
    104       SUPREME COURT REPORTS                [2013) 11 S.C.R.

A upon the complainant to remain present before the Court and
  to examine him upon oath for taking decision whether or not to
  issue process on the complaint under Section 138 of the N.I.
  Act. For the purpose of issuing process under Section 200 of
  the Code, it is open to the Magistrate to rely upon the
B verification in the form of affidavit filed by the complainant in
  support of the complaint under Section 138 of the N.I. Act. It is
  only if and where the Magistrate, after considering the complaint
  under Section 138 of the N.I. Act, documents produced in
  support thereof and the verification in the form of affidavit of the
c complainant, is of the view that examination of the complainant
  or his witness(s) is required, the Magistrate may call-upon the
  complainant to remain present before the Court and examine
  the complainant and/or his witness upon oath for taking a
  decision whether or not to issue process on the complaint under
  Section 138 of the N. I. Act.
0
        23. In the light of the discussion, 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 N.I. Act. An exception to
E the above is when the power of attorney holder of the
  complainant does not have a personal knowledge about the
  transactions then he cannot be examined. However, where the
  attorney holder of the complainant is in charge of the business
  of the complainant-payee and the attorney holder alone is
F personally aware of the transactions, there is no reason why
  the attorney holder cannot depose as a witn-ess. Nevertheless,
  an explicit assertion as to the knowledge of the Power of
  Attorney holder about the transaction in question must be
  specified in the complaint. On this count, the fourth question
G becomes infructuous.

          24. In view of the discussion, we are of the opinion that
    the attorney holder cannot file a complaint in his own name as
    if he was the complainant, but he can initiate criminal
    proceedings on behalf of his principal. We also reiterate that
H
   A.C. NARAYANAN v. STATE OF' MAHARASHTRA                    105
              [P. SATHASIVAM, CJI.]
where the payee is a proprietary concern, the complaint can           A
be filed (i) by the proprietor of the proprietary concern,
describing himself as the sole proprietor of the "payee"; (ii) the
proprietary concern, describing itself as a sole proprietary
concern, represented by its sole proprietor; and (iii) the
proprietor or the proprietary concern represented by the              B
attorney holder under a power of attorney executed by the sole
pr-oprietor.

      25. Similar substantial questions were raised in the appeal
arising out of S.L.P (Crl.) No. 2724 of 2008, which stand             C
answered as above. Apart from the above questions, one
distind query was raised as to whether a person authorized by
a Company or Statute or Institution can delegate powers to their
subordinate/others for filing a criminal complaint? The issue
raised is in reference to validity of sub-delegation of functions
of the power of attorney. We have already clarified to the extent     D
that the attorney holder can sign and file a complaint on behalf
of the complainant-payee. However, whether the power of
attorney holder will have the power to further delegate the
functions to another person will completely depend on the terms
                                                                      c:
                                                                      .._
of the general power of attorney. As a result, the authority to
su;l-delegate the functions must be explicitly mentioned in the
general power of attorney. Otherwise, the sub-delegation wil!
be inconsistent with the general power of attorney and thereby
will be invalid in law. Nevertheless, the general power of attorney
itself can be cancelled and be given to another person.               F
     26. While holding that there is no serious conflict between
the decisions in MMTC (supra) and Janki Vashdeo Bhojwani
(supra), we clarify the position and answer the questions in the
following manner:
                                                                      G
     (i) Filing of complaint petition under Section 138 of N.I Act
through power of attorney is perfectly legal and competent.

    (ii) The Power of Attorney holder can depose and verify
on oath before the Court in order to prove the contents of the        H
    106      SUPREME COURT REPORTS                [2013] 11 S.C.R.


A complaint. However, the power of attorney holder must have
  witnessed the transaction as an agent of the payee/holder in
  due course or possess due knowledge regarding the said
  transactions.

8        (iii) It is required by the complainant to make specific
    assertion as to the knowledge of the power of attorney holder
    in the said transaction explicitly in the complaint and the power
    of attorney holder who has no knowledge regarding the
    transactions cannot be examined as a witness in the case.

C      (iv) In the light of section 145 of N.I Act, it is open to the
  Magistrate to rely upon the verification in the form of affidavit
  filed by the complainant in support of the complaint under
  Section 138 of the N.I Act and the Magistrate is neither
  mandatorily obliged to call upon the complainant to remain
D present before the Court, nor to examine the complainant of his
  witness upon oath for taking the decision whether or not to
  issue process on the complaint under Section 138 of the N.I.
  Act.

E        (v) The functions under the general power of attorney
    cannot be delegated to another person without specific clause
    p~rmitting the same in the power of attorney. Nevertheless, the
    general power of attorney itself can be cancelled and be given
    to another person.

F        27. We answer the reference on the above terms and remit
    the matter to the appropriate Bench for deciding the case on
    merits.

    8.8.8.                                   Reference Answered.