Filing and Conducting a Cheque Dishonour Case through a Power of Attorney in Light of the Appellate Division Judgment
Background of the Case
The complainant filed the case before the Magistrate's Court through his attorney while he was in prison, in order to avoid the bar of limitation. At the time of filing the complaint through the attorney, a satisfactory explanation was provided before the Court. In reality, the case was instituted by the holder in due course of the cheque, and the complaint was presented before the Court through the attorney.
Facts of the Case
1.    According to the allegations stated in the Petition of Complaint, the accused issued two cheques drawn on Shahjalal Islami Bank Limited, Uttara Branch, Dhaka, namely:
•    Cheque No. 4383624 for Tk. 3,00,00,000 (Three Crore Taka); and
•    Cheque No. 4383625 for Tk. 3,00,00,000 (Three Crore Taka).
The complainant presented the cheques for encashment on three separate occasions, namely on 31.03.2014, 02.04.2014, and lastly on 09.06.2014. However, the cheques were dishonoured and returned unpaid due to a stop-payment instruction issued by the accused.
Thereafter, the complainant served a legal notice upon the accused. Despite receipt of the notice, the accused failed to make payment of the cheque amounts. As the complainant was in prison at the relevant time, he filed the Petition of Complaint through his attorney.
2. Upon compliance with all legal formalities, the learned Magistrate took cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 and registered the case as C.R. Case No. 768 of 2014.
Subsequently, the case record was transmitted to the Metropolitan Sessions Judge's Court for trial. On 11.01.2017, the accused filed an application under Section 265C of the Code of Criminal Procedure seeking discharge from the accusation.
2.    By order dated 06.02.2017, the learned Trial Court framed charge against the accused. Being aggrieved by the said order, the accused preferred a Criminal Revision under Sections 435/439 of the Code of Criminal Procedure before the High Court Division.
Upon hearing the parties, a Division Bench of the High Court Division discharged the Rule. Challenging the said judgment and order, the accused filed a Criminal Petition for Leave to Appeal before the Hon'ble Supreme Court.
4. Submissions on Behalf of the Accused
Learned Advocate Mr. Belayet Hossain, appearing for the accused, submitted that the complaint had been filed through an attorney. The said attorney was neither the payee nor the holder in due course of the cheque. Consequently, no proceeding under Sections 138 and 141 of the Negotiable Instruments Act, 1881 could legally continue against the accused.
In support of his submission, he relied upon Md. Nur Hossain vs. Md. Alamgir Alam, reported in 17 BLD (AD) 202.
5. Submissions on Behalf of the Complainant-Respondent
The learned Advocate appearing for the complainant-respondent refuted the submissions advanced by the accused and relied upon Hasibul Bashar vs. Gulzar Rahman, reported in 56 DLR (AD) 17.
He further submitted that, after recording the statement of the attorney under Section 200 of the Code of Criminal Procedure, taking cognizance of the complaint was lawful and proper.
6. Analysis by the Court
The learned counsel for the accused initially argued that a person who is neither the payee nor the holder in due course cannot file a Petition of Complaint, and therefore the entire proceeding was illegal and without jurisdiction.
(a)    In Hasibul Bashar vs. Gulzar Rahman, 56 DLR (AD) 17 (2004), referring to Tamizul Haque vs. Anisul Haque, 1996 BLD (AD) 206, the Appellate Division observed that after examining an attorney under Section 200 of the Code of Criminal Procedure, taking cognizance on the basis of a Petition of Complaint filed through such attorney is "perfectly valid and appropriate."
Since cognizance was taken after examining Attorney Anwarul Islam, in whose favour the cheque had been issued, the taking of cognizance upon the Petition of Complaint filed through the attorney was legally sustainable.
(b) In Md. Nur Hossain vs. Md. Alamgir Alam, reported in 17 BLD (AD) 202, a Division Bench of the High Court Division observed that the cheque in question had been issued in favour of Abu Khayer Md. Shawkatullah, whereas the Petition of Complaint had been filed by Md. Alamgir Alam.
Under Section 141(a) of the Negotiable Instruments Act, 1881, a complaint must be filed by the payee or holder in due course. In that case, the complainant was an outsider having no connection with the transaction. The cheque had not been issued in his favour. Therefore, the complaint had been instituted without complying with the requirements of Sections 138 and 141 of the Act.
7. In the present case, however, the Petition of Complaint was presented before the Magistrate's Court through an attorney, and it was specifically asserted therein that the complainant was in prison at the relevant time. In such circumstances, and in order to avoid limitation, the complaint was filed through the attorney.
8. In A.C. Narayanan vs. State of Maharashtra and G. Kamalakar vs. M/s Surana Securities, reported in AIR 2014 SC 630, the Supreme Court of India considered an identical issue. The Court formulated the following five questions:
(a) Whether a Power of Attorney Holder can file a complaint on behalf of the complainant and whether such filing satisfies the requirements of Section 141(a) of the Negotiable Instruments Act?
(b) Whether a Power of Attorney Holder can depose on oath under Section 200 of the Code of Criminal Procedure?
(c) Whether the Power of Attorney Holder has properly pleaded his knowledge regarding the transaction in question?
(d) If the Power of Attorney Holder does not specifically assert such knowledge, can he verify the complaint on the basis of a presumed knowledge of the transaction?
(e) Whether the procedure contemplated under Section 200 of the Code of Criminal Procedure may be dispensed with in view of Section 141 of the Negotiable Instruments Act?
9. Findings of the Indian Supreme Court
The Indian Supreme Court answered the aforesaid questions as follows:
(a) A Petition of Complaint filed through a Power of Attorney Holder is competent, lawful, and maintainable.
(b) A Power of Attorney Holder may verify the complaint on oath before the Court, provided that he possesses personal knowledge of the transaction as an authorised representative.
(c) There must be a specific assertion in the complaint regarding the attorney's knowledge of the transaction.
(d) In view of Section 141 of the Negotiable Instruments Act, the Magistrate may rely upon the affidavit filed in support of the complaint and is not mandatorily required to examine the original complainant.
(e) Authority delegated under a Power of Attorney cannot be further delegated.
The Indian Supreme Court, in Vishwa Mitter vs. O.P. Poddar, MANU/SC/0378/1983 : 1984 Cri LJ, further observed that any person may file a complaint before a competent Court, and cognizance cannot be refused merely on the ground that the complainant is allegedly not the proper person to file the complaint.
10. In Associated Cement Co. Ltd. vs. Keshvanand, MANU/SC/0894/1998 : 1998 Cri LJ 856, the Indian Supreme Court observed that where the complainant is a juristic or incorporeal person, such complainant must necessarily be represented by a natural person before the Court.
11. Final Observation of the Supreme Court
The Hon'ble Supreme Court ultimately observed that the complainant had filed the case through an attorney while he was in prison and had provided a satisfactory explanation for doing so in order to avoid limitation. Such compelling circumstances could not be ignored.
The complainant in the present case was himself the holder in due course of the cheque, and the case was merely presented through an attorney.
Accordingly, upon consideration of the legal principles, evidence on record, and the facts and circumstances of the case, the Court held that no illegality had been committed in filing the complaint through an attorney, and the learned Magistrate had lawfully taken cognizance of the matter.
Therefore, finding no substance in the Criminal Petition for Leave to Appeal, the same was dismissed.
Concluding Remarks
In cheque dishonour litigation, both the complainant and the accused are required to proceed strictly within the literal framework of the law. Courts generally adopt a rigorous approach in ensuring compliance with statutory requirements. Whenever a legal question arises before the High Court Division or the Appellate Division, the courts ordinarily apply the principle of literal interpretation.
The first notable departure towards a beneficial interpretation in cheque dishonour jurisprudence was seen in Md. Abdul Kaher Shahin vs. Emran Rashid and another, where the Court adopted a practical approach in interpreting the relevant provisions.
Similarly, in the case discussed herein, the Hon'ble Supreme Court adopted a schematic and pragmatic approach by giving due consideration to the compelling circumstances of the complainant. This judgment represents a significant paradigm shift in the jurisprudence relating to cheque dishonour cases.

(Md. Atiquzzaman)

Advocate,

Supreme Court of Bangladesh