Section 138 of Negotiable Instrument Act- Complaint Filed through Power of Attorney is Maintainable- Supreme Court

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October 03, 2018

Section 138 of Negotiable Instrument Act- In this recent case, the Supreme Court reiterated the settled position of law that a complaint filed by the power of attorney would be maintainable in law.

Case name: SK. Tamisuddin v. Joy Joseph Creado & Anr.

In the case, a compliant under Section 138 of Negotiable Instrument Act, 1881 was filed by one-Sairabee through her Special Power of Attorney Holder. However, Sairabee died while the trial was in progress. The appellant after the death of Sairabee filed an application before the learned trial Court to continue the prosecution as her legal heir.

The said application was quashed by the High Court on the ground that the initiation of complaint by the Special Power of Attorney of Sairabee was invalid and that the continuance of the proceedings after the death of Sairabee by the said Power of Attorney would not be permissible. Aggrieved by the impugned order of High Court, the Appellant approached the Supreme Court.

The Three-Judge Bench of the Supreme Court, while making reference to its decision in the case of A.C. Narayanan vs. State of Maharashtra and Another[1], wherein the Apex Court held that a complaint filed by the power of attorney would be maintainable in law.

The Supreme Court Bench further noted that after the death of Sairabee, the application filed by the appellant was to continue the criminal prosecution as the legal heir of the deceased Sairabee.

The entire case can be accessed here.

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[1] (2015) 12 SCC 203