BHATTACHARJEE, J. - (1.) THE question that falls for consideration in connection with this revisional application is whether in view of the provisions of Section 142 of the Negotiable Instruments Act, 1881 a complaint can be filed by a person holding power to attorney of the payee of the cheque in respect of which an offence has been committed under Section 138 of the Act. The opposite party herein Amal Kumar Banerjee filed a complaint as the authorised representative of one G.S. Tewari @ Ganesh Shankar Tewari who was the payee of the concerned cheque issued by the petitioner herein. Section 142 of the Negotiable Instruments Act, 1881 runs thus: "Section 142. Cognizance of offence : - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 - (a) no court shall take cognizance of any offence punishable under Section 132 except upon a complaint in writing, made by the payee or, as the case may be the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138; (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138".
(2.) IT has been argued by the learned Advocate for the petitioner that clause (a) of Section 142 specifically requires that the complaint has to be made by the payee or, as the case may be, the holder in due course of the cheque and that being so none else and not even the authorised agent of the payee can make the complaint. In the present case, the complaint has been filed by the authorised agent of the payee on the basis of a power of attorney executed by the payee in his favour. The question is whether the complaint filed by the authorised agent of the payee is maintainable in view of clause (a) of Section 142, N.I. Act.
(3.) ORDINARILY anyone can set the law in motion for prosecuting an offender and therefore anyone can make a complaint irrespective of the question whether the offence has been committed against the complainant and whether any injury was sustained by him. However, in some cases the law restricts the right to make a complaint only in favour of specified persons and where such restriction is placed it is not open to anybody and everybody to file a complaint in respect of any such matter. As for example, Section 195 Cr.P.C. contains provisions under which offence of certain nature specified therein complaint can be made only by those mentioned therein and not by any other. Section 199(1) Cr.P.C. also contains provisions restricting the right to make a complaint in respect of the offence of defamation to person aggrieved by the offence. Be that as it may, the question that has to be considered now is even when the right to make a complaint in respect of any particular matter is restricted to any person under any provision of law, whether his authorised agent can file complaint on his behalf in respect of such matter. In this connection, we may refer to the decision of the Supreme Court in Ravulu Subba Rao v. I.T. Commissioner, AIR 1956 S.C. 604 relied upon by the learned advocate for the opposite party. In that case it was argued before the Supreme Court that under the common law in England, a person has the right to do through an agent whatever he can do himself, and that right also been conferred on him in this country by Section 2, Powers of Attorney Act, 1882 which runs as follows : "The donee of power of attorney may, if he thinks fit, execute or do any assurance, instrument or thing in and with his own name and signature and his own seal, where sealing is required by the authority of the donor of the power, and every assurance, instrument and thing so executed and done, shall be as effectual in law as if it had been executed for done by the donee of the power in the name and with signature and seal, of the donor thereof. This section applies to powers of attorney created by instrument executed either before or after this Act comes into force." The following observation of the Supreme Court in paragraph 7 of the said decision in this connection deserves attention : - "7. According to the law of England - and that is also the law under the Indian Contract Act, 1872: "Every person who is sui juris has a right to appoint an agent for any purpose whatever, and that he can do when he is exercising a statutory right no less than when he is exercising any other right." Per Stirling, J. in Jackson and Co. Vs Napper, in re: Schmidts' Trade Mark (1886) 35 Ch.D. 162 at P -172(c). "This rule is subject to certain well known exceptions as when the act to be performed is personal in character, or is annexed to a public office, or to an office involving fiduciary obligations. But apart from such exceptions, the law is well -settled that whatever a person can do himself, he can do through an agent." ;