Evidence and Power of attorney How and when to file Power of Attorney in

Civil Court - Criminal Court Family Court Labour Court Rent Control
Court Cheque Dishonored.
WHEN AND HOW TO FILE POWER OF ATTORNEY IN COURT PROCEEDINGS
?
Representation by Power-of Attorney Holder in Civil Cases:
A party to the Court Proceedings may be represented by a Power-of Attorney
holder duly authorized by the Party/Principal. Under Order 3 Rule 1 & 2 of Civil
Procedure Code any appearance application or act in or to any Court except
otherwise provided by any law made or done by the party in person or by his
recognized agent or by a pleader on his behalf. Order 3 Rule 2 of C.P.C. specifies
the Power-of-Attorney holder as recognized agents for the Party. Therefore the
power-of-Attorney holder who is authorized to appear on behalf of the party can
appear, file application engage advocates and act on behalf of parties. The
process to be served to the Party shall be served to the power agent[Order 3 Rule
3 C.P.C.] Besides the recognized agents, any person residing within the
jurisdiction of the Court may be appointed as agent to accept service of process
[Order 3 Rule 6 C.P.C.] The appointment may be special or general and shall be
made by an instrument in writing signed by the principal and such instrument or, if
the appointment is general, a certified copy thereof shall be filed in Court. The
Court may, at any stage of the suit, order any party to the suit not having a
recognized agent residing within, the jurisdiction of the Court, or a pleader who
has been duly appointed to act in the Court on his behalf, to appoint, within a
specified time, an agent residing within the jurisdiction of the Court to accept
service of the process on his behalf. Rule 16 and 17 of the Civil Rules of Practice
[T.N.] enumerates the procedure to file power of attorney by the agent and
recognizing the same by the Court as follows:
Rule 16 : PARTY APPEARING BY AGENT:

When a party appears by an agent other than a pleader or advocate the

agent shall before making or doing any appearance, application, or act in or to the
Court file in Court the power of attorney or written authority thereunto authorizing
him, or a properly authenticated copy thereof/ or in the case of an agent carrying
on a trade or business on behalf of a party without a written authority an affidavit
stating the residence of his principal, the trade or business carried on by the agent
on the behalf and the connection of the same with the subject matter of the suit
and that no other agent is expressly authorized to make or do such appearance,
application or act.
The judge may thereupon record in writing that the agent is permitted to
appear and act on behalf of the party and unless and until the said permission is
granted no appearance, application or act of the agent shall be recognized by the
Court.
Rule 17 : SIGNING OR VERIFICATION BY AGENT:

If any proceeding which under any provision of law or these rules is required to be
signed or verified by a party is signed or verified by any person on his behalf a
written authority in this behalf signed by the party shall be filed, in Court. Together
with an affidavit verifying the signature of the party and stating the reason of his
inability to sign or verify the proceedings and proving the means of knowledge of
the facts set out in the proceeding of the person signing or verifying the same.
Relevant Rules from the Madras High Court Original Side Rules with regard to
filing of proceedings before High Court by the power of attorney:
Rule 7 Order II :
Affidavit of recognized agent as defined in Order III, Rule 2, Civil Procedure Code
to be filed: Except as provided for by the Code if a plaint is subscribed and verified
by a person other than the party on whose behalf it is presented it shall not be
admitted or filed unless it is made to appear, upon affidavit that such person is a
recognized agent of the party as defined by Order III Rule 2 of the Code and is
duly authorized and competent so to do.
Rule 37 of Order XXV:
Registrar may require further proof of execution of Power of Attorney: Unless a
power of attorney constituting such attorney can under section 85 of the Indian
Evidence Act, 1872 be presumed to have been executed and authenticated as in
the said section mentioned, the Registrar may require further proof of its due
execution.
Rule 1 of Order XXIX:
Application for execution to be made to the Registrar:
All application for the execution of decrees or orders whether of the High Court or
of any o0ther Court (except as otherwise provided by these rules) shall be made
by advocates or by parties in person to the Registrar. The transmission of decrees
and the issue of all necessary warrants and notices by him and all amendments
thereof shall be deemed quasi-judicial acts.
Procedure in filing power-of-attorney in Civil Court:
When the Power-of-attorney holder appears for a party he has to file:

Authenticated copy of the Power-of-Attorney to be filed. The Original powerof-Attorney may be produced to the officer of the Court for verification and will be
taken back after due verification.
A petition with supporting affidavit to be filed along with an affidavit under
Rule 16(2) of Civil Rules of Practice[T.N.] seeking permission to appear and act
on behalf of the principal/Party as a recognized agent. The Attorney (agent)
should also state that the executor is alive at the time of filing the suit and further
to aver that the power of attorney is still in force.

The attorney should state in the affidavit verifying the signature of his
principal and stating the reasons for the principals inability to sign or verify the
proceedings and proving the means of knowledge of the facts set out in the
proceedings by the attorney signing or verifying the same. The agent also should
aver that no other agent is expressly authorized to make any such appearance or
application or do such an act.
With regard to filing of the cases and taking part in the proceedings by the
power of attorney holder, in the proceedings before the Madras High Court
(Original Side) the Madras High Court Original Side Rules recognizes the power
of attorney executed and authenticated as per section 85 of the Indian Evidence
Act only. In all other kinds of power-of attorney if needed the Registry may require
further proof of due execution of the power-of-attorney relied upon.
In the true copies of the power-of-attorney a Court fee of Rs.5/- to be
affixed as per the Article15, Schedule II of the Tamil Nadu Court Fees and Suits
Valuation Act 1955.
Appearance by power agent in Court: In Surender Raj Jaswal Vs. Smt. Vijaya
Jaiswal [AIR 2003 AP 317], the question as to whether the General Power of
Attorney holder of the respondent is entitled to appear and prosecute the case
considered. In this case the plaintiff gave power of attorney to her husband who is
well acquainted with the facts of the case and who is looking after her affairs. The
Court permitted the plaintiffs power of attorney holder under Rule 32 and 33 of
Civil Rules of Practice (A.P.) to prosecute the case of the plaintiff by tendering
evidence. The Power of Attorney holder cross examined the defendant which was
agitated by the defendant. It was held that when the trial Court permitted the
power agent to prosecute the case and to cross examine the witnesses, the said
agent was helping the Court by appearing for the plaintiff and there was no remark
noticed by the trial Court. It was held further that it is always open to the Court to
withdraw or cancel permission if the power of attorney holder is unworthy or
reprehensible. When can a General Power of Attorney holder give evidence:When
once a person files a suit on behalf of the party, as a G.P.A. holder he enters into
the shoes of that party and except to the extent of personal knowledge, he is
entitled to depose on other facts. In the instant case, what was relied upon by the
plaintiffs is entirely documentary evidence, which are public documents and no
personal knowledge was required to be pressed into service to establish the case
of plaintiff [Secretary to Govt. of India Vs. Indira Devi, AIR 2003 A.P. 329 (DB)]
In Shanthi Devi Agarwal Vs. V.H. Lulla [AIR 2004 M.P. 58], the Madhya Pradesh
High Court while considering letting of evidence by Power-of-Attorney holder held
that a power of attorney holder, who virtually steps into shoes of a party can place
materials in terms of the definition of evidence as above, on behalf of that party,
before a Court under Section 118 of the Evidence Act unless he stands
disqualified for the reasons given in that section itself and further, admissibility of
his evidence would be subject to rigorous procedure contained in Chapter X
thereof. That apart a bona fide requirement is also with reference to family and it
can be proved by any member of the family. In the instant case old age of the
plaintiff is a good ground that her son, the power of attorney holder, should have
been allowed to tender evidence on her behalf. In P.Punnaiah Vs./Jeypore Sugar

Co. Ltd.,[AIR 1994 SC 2258], the Supreme Court held that the normal rule is that
whatever a person can do himself, he can do it through his agent, except certain
functions which may be personal in nature or otherwise do not admit of such
delegation. In Humberto Luis Vs. Floriano Armando Luis [2000 AIHC 1572 (Bom.)
= 2000(1) Mah LJ 690] it was held that a person holding a power of attorney can
depose in the witness box on behalf of the party. InMoulasab Vs. Sri Mohammed
Hasim deceased by LRs and others [2003 (1) KCCR 239 = ILR 2003 (2) Kar 1041
=2003(2) KLJ 48]. It was held that the recognized agent holding GPA cannot be
allowed to plead and argue. He can only appear and conduct the judicial
proceedings and has no right of audience. Power to plead on behalf of a party to
judicial proceedings is vested only with the pleader. This is very clear from the
provisions contained in Order 3, Rule 2 and Order 3 Rule 4 of CPC. In Jaymal
Thakore Vs. Charity Commissioner, Ahmedabad [AIR 2001 Guj. 279], it was held
that a chartered accountant holding a power of attorney can file application on
behalf of a party in the proceedings but he cannot act as pleader for the party as
contemplated by the provisions of the Advocate Act.
When Power of Attorney holder cannot give evidence :
In a latest Supreme Court case Janki Vashdeo Bhojwani Vs. Industrial Bank Ltd.,
[(2005) 2 SCC 217 =AIR 2005 SC 439 =2005 (3) CTC 128 (SC)], It was held that
power of attorney holder cannot depose for principal in respect of matters of which
only the principal can have personal knowledge and in respect of which principal
is entitled to be cross-examined. It is further observed that persons claiming share
in property should have entered the witness box and discharged burden. The
power of attorney holder cannot enter a witness box and depose instead of
persons claiming such share. Such persons have to show that they have got an
independent source of income and they contributed for the purchase of property
from such independent income. It was observed that where a person does not
appear in a witness box and state his/her case on oath and does not offer to be
cross examined by the other side, the presumption would arise that the case set
up by such person is not correct.
In S.Padmavathamma Vs. S.Sudha Rani [AIR 2004 AP 309] the Andhra Pradesh
High Court held that the general power of attorney holder can appear as a witness
only in his personal capacity. He cannot appear as witness on behalf of the
plaintiff in the capacity of plaintiff as he cannot speak about the facts which are
within the personal knowledge of the party. The Court approved that a power of
attorney is not a substitute for his principal, and he cannot speak about the facts
which are within the personal knowledge of the party.
In R.Subba Rao Vs. Commissioner of Income Tax, Madras [AIR 1956 SC 604],
the Supreme Court held that under rule 6 of the Income Tax Rules a person who
seeks relief under the section 26 A of the Income Tax Act, 1922 for Registration of
Firm the partner alone is a competent person to sign on the form and the agent
has no such power. It is observed and distinguished in P.Punnaiah Vs.Jeypore
Sugar Co.Ltd.,[AIR 1994 SC 2258], as the matter arose under section 26(A) of the
Indian Income Tax Act, 1922 read with Rules 2 and 6 of the rules framed in that

behalf. The Rules provided that an application for renewal of registration of the
firm shall be signed personally by all the partners. It is because of the said
requirement that it was held that the partners must sign such a application
personally.
In Kailashi Devi Vs. Matadeen Agrawal [AIR 2001 Raj 306], it was held that the
power of attorney holder is a competent witness and is entitled to appear as such.
His statements in the Court cannot be ignored or it cannot be said that the
statement of such a witness shall not be read in evidence only because of the
reason that he had appeared as power of attorney and the parties to suit i.e.
plaintiff or defendant do not choose to appear as a witness in witness box. His
evidence is to be evaluated as per his deposition before the Court and in case the
Court finds that evidence or such power of attorney does not depose confidence,
the Court is at liberty to evaluate the same. There is no jurisdiction with the Court
to say that the evidence of such person shall not be read at all and that the
plaintiff must appear in the case in her support.
In Smt.Gangavva Vs. Arjunsa [AIR 2001 Kant.231] it was held that the attorney of
plaintiff can be examined for and on behalf of the plaintiff as her substitute. There
is no express bar made in the provisions of C.P.C. to debar the power of attorney
to be examined as a witness on behalf of the parties to the proceedings. A party
without examining himself can as well establish his case if possible by examining
the witnesses who are competent to testify. However, in cases where there is onus
placed on the party to discharge and if the facts required to be deposed are
necessarily to be testified by the party in person, in such a situation, however,
such a party runs the risk of facing adverse inference for non-examination .
Otherwise, it also open to the party to give evidence through the power of attorney
and such evidence would be a valid substituted evidence of the plaintiff.
Power of Attorney and Advocate :
In Thaamammal Vs. Kuppuswami Naidu (M.Krishnamal Vs. T.Balasubramania)
[AIR 1937 Mad.937 (1937) 2 MLJ 552 (FB), the Full Bench of the Madras High
Court observed that the power of attorney agent cannot be accorded all the rights
and privileges which are enjoyed by members of legal profession and cannot
carry-on business as a solicitor or attorney drafting engrossing and filing plaints,
judges summons, affidavits and generally issuing legal process and charge fees
to the principal. Hence, the power of attorney is not entitled to appear and conduct
the proceeding himself or appoint an advocate to appear for him as his power of
attorney and authorize him to plead.
In Divaliben Vs. Mavijibhai Vasanjibhai Ahir [AIR 1995 Guj.151], it was held that a
power of attorney holder of a party can certainly be examined as a witness in any
proceeding. A power of attorney holder is given power to act on behalf of the
person giving such power. That would possibly include all acts which a party could
do. If the power of attorney holder has no personal knowledge as to certain facts
deposed by him at trial, his evidence can be disbelieved or even discarded.
Simply because he is examined as a witness at trial on behalf of a party, it cannot

be said that there was a defect in following the procedure provided by the Act. The
Code nowhere prohibits examination of a power of attorney holder as a witness in
any proceeding. Even a third party can be examined as a witness on behalf of a
party to the proceeding.
In Mannlal Vs. Bherulal [AIR 1965 Mys.272], it was held that power of attorney
executed for doing all acts and things necessary in connection withy suits gives
imp0lied authority to attorney to bring suits on behalf of a minor represented by
next friend without consent of next friend.
In Sikhar Chand Vs. Santi kumar {2002 AIHC 575(Raj)] it was held that a person
holding power of attorney can appear as a witness for the party and not as a
plaintiff. The plaintiff has to discharge the burden of proving a certain fact/issue
which the law requires him to do so.
In State Bank of India Vs. Prem Dass [AIR 1998 Del. 49], it was held that in a suit
for recovery of loan by the Bank a person notified on the gazette and under bank
with regulations is competent to sign and verify the plaint.
In a complaint under section 138 of the negotiable Instruments Act, the original
complainant died. The legal heirs of the deceased complainant appointed agents
under power of attorney to proceed with the complaint. The power of attorney
holders filed petition u/s 302 of Cr.P.C. to continue the prosecution. In this case
the Supreme Court held that neither heirs of the complainant who filed petition u/s
302 of the Code to continue the prosecution nor any permission was sought by
them from the competent Court that they should be allowed to continue the
prosecution through their power of attorney holders, rather the prayer was made
by the power of attorney holders, which is not permissible under law. But the
liberty was given to the heirs either to make application themselves before the
Court concerned to continue the prosecution or apply to the Court to grant
permission to them to authorize a power of attorney holder to continue the
prosecution on their behalf.[Jimmy Jahangir Madan Vs. Bolly Cariyappa
Hindley AIR 2005 SC 48 = (2204) 12 SCC 509]
Defective Power of Attorney and replacement by second one :
In Jugraj Singh Vs. Jaswant Singh [AIR 1971 SC 761] the Supreme Court held
that when the first power of attorney was not complied with the requirements of
the law and was ineffective and was not authenticated as required by section 33 of
the Indian Registration Act, 1908, a second power of attorney with proper
authentication by a Notary of the foreign country is valid. It was further observed
that the second power of attorney being a document ratifying a former
inconclusive act related back, to the time when the first document was made and
cured the illegality in the presentation for registration which had taken place.
Non-filing of power of attorney at the time of initiation of the proceedings whether
fatal:

In Ashok Kumar Vs.Gobind Dhandra [AIR 1984 Cal. 337], it was observed and
pointed out that during the course of hearing, it was transpired that Mr.P.N.
Mukherjee, the learned advocate on record of the appellant had not filed his
power of attorney and on such a further point for consideration arose as to
whether because of such admitted non-filing of the power at the initiation of
proceedings. The present application and all the orders obtained earlier or passed
by the court. It was held that non-filing of the power of attorney at the initial stage
was a mere irregularity, which could be cured.
The power of attorney was not filed at the time of filing of the suit. But ratification
of earlier power of attorney was produced by the principal. It was held that the
agent can not be deemed to have taken authority on behalf of the principal for
prosecution of the cases by producing originals hearing altogether different dates
[State of Karnataka Vs. M. Muniraju, AIR 2002 Kant. 287].
A plaint in a suit filed on behalf of a Bank was signed and verified by its manager
who under the Articles of Association of the Bank was authorized, with the
previous sanction of the directors, to take legal proceedings to recover the dues of
the Bank. He did not hold any power of attorney on the date of the suit. On an
objection by the defendant, an amended plaint was filed by the Bank stating that
the Bank had, by its resolution, confirmed and ratified the managers action. The
Court allowed the amendment of plaint. On revision against the order held that as
the initiative to institute the suit could be properly transferred to the Manager
under the Articles of Association, the subsequent ratification of the act of the
agent by the principal could cure the original defect. AIR 1936 Lah 321 and 25 All
635. Relied on AIR 1932 Lah 388 and AIR 1935 Lah 345 distinguished [Kirpal
Chand Vs. The Traders Bank Ltd., AIR 1954 JandK 45]. A Power of attorney filed
at a later stage within limitation period in execution proceedings can be acted
upon [Addeison J Vs. Chhajju, AIR 1929 Lah 478].
Power of Attorney in Family Court :
Representation of power of attorney holder in Family Court:Papers may be
presented in the Family Court by the Power of attorney:In the Family Court the
petitioner shall have the right to present the papers through a recognized agent
other than legal practitioner, as contemplated U/O 3 R 1 of C.P.C. [Syed Amina
Beevi,S.M., Mrs. Vs. Mr.Thaika Sahib alim, 1993-2-L W 604 (Mad.) = I (1994)
DMC 557]
A Divorce petition was filed by husband on the ground of cruelty. After the chief
examination, cross examination and re-examination of the petitioner (husband)
was over, and when the wife was being examined in chief Family Court passed
order allowing the petition filed by husband praying that his presence may be
dispensed with as the husbands father and power of attorney holder informed the
Court that the husband has proceeded to Saudi Arabia, the petition filed on behalf
of the husband was held to be permissible in such peculiar circumstances
[Dr.K.Malathi Vs. Dr. S.Rajasekaran, 2003 L.W. 870 (Mad.)]

An authorized agent can represent in the Family Court but whenever the presence
of party is necessary, the party must be present [Pavithra, represented by power
agent S.Rajkumar Vs. Rahul Raj, 2003-2-L.W. 431 (Mad.)].
Power of Attorney in Rent Control Court :
Petition for eviction by the power of attorney holder from landlady: Under the
power of attorney, power is given to the attorney to carry out repairs, remodel,
renovate, reconstruct or alter all or any of the properties, incur the necessary
expenses for the same and engage qualified workman to carry out the said items
of work. The undertaking in the present case is therefore, one coming within the
meaning of section 14(2) of the Tamil Nadu Buildings(Lease and Rent Control)
Act, 1960, and the principal or landlord cannot escape the penal consequences
for the non performance of the undertaking by astute arguments or contentions on
the basis that the undertaking was only given by the agent [S.A.M. Jameema
Beevi Vs. Easwarlal Patel,1979-2-MLJ 355 (Mad.)].
Power of Attorney in Labor Court :
A power of attorney holder from an employer held, not liable for Provident Fund
contributions for period before and after it was in force. The petitioner was a
power of attorney holder from the employer of a proprietary establishment and he
challenged in his petition a direction by the Provident Fund authority to pay large
sum of Provident Fund dues. The High Court held the petitioner was liable only for
the period during which the power of attorney was in force and not for period
before or after that. While on this, it was observed that the Powers of Attorney Act
of 1882 indeed requires a thorough examination, so as to plug the loopholes, and
cover areas, where essentially more legislative attention is necessary. Situations
have come before Courts, when it had been felt that a better statement of rights
and liabilities of parties and areas where the facility could and should not be
resorted to are to be concisely defined [Sajeev T.K. Vs. Provident Fund
Commissioner, 2004 III-LLJ (Ker.)].
Power of Attorney in Criminal Court :
Complainant through Power-of-Attorney holder cannot file a Criminal Complaint
under section 500 IPC: A Complainant residing in Dubai executed a power-ofAttorney in favor of another person to file complaint for offence under section 500
IPC. It is observed that Section 199(1) of Code of Criminal Procedure lays down
that where a complainant is under the age of eighteen years, or is an idiot or a
lunatic, or is from sickness or infirmity unable to make a complaint or is a woman
who according to the local customs and manner, ought not be compelled to
appear in public some other person may with the leave of the Court make a
complaint on his or her behalf. Complainant residing outside India cannot
authorize a person through power-of attorney to file a complaint U/S 55
IPC[Fr.Thomas Maniankerikalam Vs. Thomas J Pudiyath, 2005(3) CTC 567 (SC)].

In T.C.Mathai Vs. District and Sessions judge,Thiruvananthapuram [AIR 1999 SC

1385 = 1999 Cri.L.J. 2092 (SC), the Supreme Court pointed out that the accused
cannot appear through a power of attorney holder unless permission for such
appearance is sought by the accused himself and the Court expressly granted
such permission.
In T.C. Mathai Vs. District and Sessions Judge, Thiruvananthapuram [1999
Cri.L.J. 2092 (SC), the Supreme Court pointed out that a power of attorney holder
who is not authorized by Court cannot become a pleader and cannot appear for
the accused before the criminal Court like that of an advocate.
POWER-OF-ATTORNEY IN CHEQUE DISHONOUR CASES (COMPLAINT U/S
138 OF NEGOTIABLE INSTRUMENTS ACT,1881)
Power-of-attorney holder of legal heirs of the deceased complainant cannot file
petition to continue the prosecution: U/S 138 of the N.I. Act, the original
complainant died. The legal heirs of the deceased complainant appointed agents
under power of attorney to proceed with the complaint. The power-of-attorney
holders filed petition U/S 302 of Cr.P.C. to continue the prosecution. In this case
the Supreme Court held that neither heirs of the complainant filed petition U/S 302
of the Code to continue the prosecution nor any permission was sought by them
from the competent Court that they should be allowed to continue the prosecution
through their power-of-attorney holders, rather the prayer was made by the powerof-attorney holders, which is not permissible under law. But the liberty was given
to the heirs either to make an application themselves before the Court concerned
to continue the prosecution or apply to the Court to grant permission to them to
authorize a power-of-attorney holder to continue the prosecution on their behalf
[Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley, AIR 2005 SC 48 = (2004)
12 SCC 509].
Guidelines to file complaint by power of attorney holder:
A complaint can be presented by General power of attorney on behalf of the
payee, provided

the complaint shall be signed by the payee himself,

there shall be also an affidavit of the complainant in proof of his execution
of GPA added to the production of the said power-of-attorney document
a sworn statement of GPA can be recorded on the date of presentation of
the complaint
a sworn statement of payee (complaint) shall have to be taken at a future
date on his appearance in Court, the Magistrate shall thoroughly examine the
statements of GPA holder as well as the original complaint and the documents
produced before him and exercise his discretion vested under sections 202 and
203 of Cr.P.C. The above guidelines are not exhaustive and in other
circumstances the Magistrate shall exercise his discretion judiciously and in
conformity with other provisions of law applicable [Y. Vijayalaskhmi @Rambha Vs.
Manickam Narayanan, Proprietor, Seventh Channel Communications, reptd. By its

power-of-attorney Agent, Thanigaivelan, 2005(3) CTC 480 (MAD) Date of

judgment 8/6/2005]
A power-of-attorney holder cannot depose for principal in respect of matter of
which only the principal can have personal knowledge and in respect of which the
principal is entitled to be cross examined [Janki Vashdeo Bhojwani Vs. Industrial
Bank Ltd., (2005) 2 SCC 217 = 2005 (3) CTC 128 (SC) AIR 2005 SC 439]. The
power-of-attorney of a payee or a holder in due course of a dishonoured cheques
can file a complaint for an offence U/S 138 of N.I.Act after obtaining permission
from the Court, either before or after filing of the complaint [Ramachandra Rao K
Vs. State of A.P., 2005 (2) CTC 417 (A.P.-FB) = 2005 (2) ALT 607].
Representation by subsequent person:
No Magistrate shall insist that the particular person, whose statement was taken
on oath at the first instance, alone can continue to represent the company till the
end of the proceedings. It has been held that there may be occasions when
different persons can represent the company. It has been held that it is open to
the dejure complainant company to seek permission of the court for sending any
other person to represent the company in the court [M/s M.M.T.C. Ltd., Vs. M/S
Medchl Chemicals & Pharma (P) Ltd., 2002 (1) Crimes 156 (SC) = 2002 Cri.L.J.
266 =AIR 2002 SC 182 = (2002) 108 Comp. Cas 48 =(2002) 1 SCC 234].
Notice on behalf of power-of-attorney holder by Advocate:
Power-of-Attorney holder of payee instructing an advocate to send notice. The
said notice is valid [S.G.Pandalai Vs. Jacob C. Alexander & State of Kerala, 2002
(108) Comp. Cas. 841 (Mad)].
Notice by power-of-attorney:
Notice on the instruction of power-of-attorney holder is valid [S.G. Pandalai Vs.
Jacob C.Alexander, 2000 Cri L.J. 2155 (Ker) =2000 (3) Crimes 232].
Complaint by power-of-attorney holder:
A power-of-attorney holder of a payee or holder in due course can make a
complaint U/S 142 of the N.I. Act, but still the principal has to bear the ultimate
responsibility [Hamsa Vs. Ibrahim, 1994 (1) Crimes 395 (Mad.) See also
Manimekalai Vs. Ghopaldas Kalyanji Sanghvi, 1995 CriLJ 1102 (Mad.), Sova
Mukherjee Vs. Rajeev Mehra 1997 (2) CCR 313 (Cal.)]
If a power of attorney agent can act instead of an individual payee or a holder in
due course, it will equally be competent for a power-of-attorney agent of a
company explained U?S 141 of the N.I.Act, meaning any body corporate including
a firm or other association of individuals to file a complaint on behalf of the
company. But, it has been observed that a non-filing of authorization while taking
cognizance would bar the impugned complaint U/S 142(a) of the N.I.Act [Ruby

Leather Exports Vs. K. Venu Reg. Vandana Chemicals etc., 1994 Crimes (1) 820
(Mad.)]
Non-filing of power-of-attorney at the time of filing complaint :
The Manager of the company who has not filed power-of-attorney at the time of
filing complaint and not being the payee of the cheques cannot file the complaints
[Sudesh Kumar Sharma Vs. K. Selvamani 1994 -1- L.W. (Crl.) 337 (Mad.) = 1995
(1) KLT (SN 14)]
Fresh Power-of-attorney in the place of previous power-of-attorney: The power-ofattorney holder should be permitted to file complaint U/S 138 of the N.I. Act. There
is nothing wrong in substituting a fresh power-of-attorney holder or representative
of the company in the place of previous power-of-attorney holder or representative
{Benhur T. & I. Pvt. Ltd., Vs. State of Kerala 1995 (2) KLT 985 (Ker.)]
Complaint filed basing on power-of-attorney is valid:
It is well settled that any person can set the criminal law in motion and as such, a
complaint regarding an offence, can be filed by any person who knows about the
commission of the offence[Dr.Pradeep Mohanbhay Vs. Mr.Minquel Carloes Dias,
2000 (102) (1) Bom LR 908].
Cheque issued by power-of-attorney holder: Principal is liable:
The principal is always bound by the act of power-of-attorney holder. A cheques
issued by the constituted attorney in partial discharge of debt deemed to be
issued by the principal and the principal is liable for prosecution [Smt. Sova
Mukherjee Vs. Rajiv Mehra[ 1 (1997 CCR 135 (Ca.l.)]
Without an authorization a complaint cannot be filed :
Without an authorization a Director or any person similarly situated cannot
maintain a complaint U/S 142 of the N.I.Act [Swastik Coaters Pvt. Ltd. Vs. Deepak
Brothers 1997 Cri.L.J. 1942 (A.P.)]
Subsequent filing of power-of-attorney is valid:
Complaint filed on 24/9/97 authorization to Manager only on 17/11/97,
subsequent to filing a complaint. The authorization held to be valid, subsequent
authorization given cannot be thrown out on the ground that there was no
authorization at the time of filing complaint [Modern Denim Ltd., Vs. Luca TVS Ltd.
1999 (3) CTC 143 (Mad.)].
A power-of-attorney holder cannot represent for accused:

When the code requires appearance of an accused in a court it is no compliance

with it if a power-of-attorney holder appears for him. T.C.Mathai Vs. Dist. &
Sessions judge, Thiruvananthapuram, 1999 Cri. L.J. 2092 (SC)].
Procedure to be followed before initiating prosecution U/S 138 of Negotiable
Instruments Act by the Power-of-a-Attorney holder :
Any payee or a holder in due course of a cheques may initiate prosecution if the
cheques has been duly presented in time and dishonored for want of funds in the
Account of the drawee or on such other grounds stated in the statute, after giving
the requisite notice on this behalf. A complaint U/S 200 Cr.P.C. read with Section
138 Negotiable Instruments Act shall be filed in the competent Magistrate Court or
initiating prosecution against the drawer of the Cheque. But there is an
impediment with regard to filing of the complaint by a payee or a holder of the
cheques who is unable to personally initiate action due to ill health, old age,
frequent absence in the jurisdiction of the Court.
Generally in Magistrate Courts, a private complaint has to be presented by a
party-in-person or by his pleader. Further the proviso in Section 199(1) of Cr.P.C.
with regard to prosecution in defamation cases states that a person who is unable
to make a complaint by himself may present a complaint, only with the leave of the
Court, Recently in Fr.Thomas Maniankerikalam Vs. Thomas J Padiyath 2005(3)
CTC 567 the Supreme Court in a complaint initiated in a defamation case by a
power-of-attorney holder without the leave of the Court has held that the complaint
is not maintainable.
Applying the same analogy, it is clear that unless an app0lication seeking leave to
prosecute is filed and orders are obtained, no complaint u/s 138 of the N.I. Act
can be filed by a power-of-attorney holder on behalf of his principal. In
K.Ramachandra Rao Vs. State of A.P. 2005(2) CTC (FB) 417 the Full Bench of
the Andhra Pradesh Court has held that the power-of-attorney of the payee or the
holder in due course of a dishonored cheques can file a complaint for an offence
u/s 138 of the N.I Act after obtaining permission from the Court either before or
after filing of the complaint.
Rule 111 of the Criminal Rules of Practice as applicable to the State of Tamil
Nadu runs as follows:
Complaints to be presented in person or by pleader: All complaints applications
etc. shall be presented to the Magistrate by a party in per5son or by his pleader.
The complainant shall present along with the complaint as many copies on plain
paper of the complaint as the number of accused persons complained against.
Therefore in order to maintain a complaint U/s 138 of the N.I. Act by a power-ofattorney holder he has to seek the leave of the Court to file a complaint.
For instance if the Managing Director of a Company is at Mumbai and there are
various branches throughout India, he cannot sign in all the Complaints filed by
the Company in various places. So the direction given by the Madras High Court

in Vijayalakshmi Y @ Rambha Vs. manickam Narayanan 2005(3) CTC 480

requires reconsideration.