Gitesh Ranjan 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 of attorney of the payee of the cheque in respect of which an offence has been committed under Section 138 of the said Act. The opposite party herein, Ammal 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 offences-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 or 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 for offences of certain nature specified therein complaint can be made only by those mentioned therein and not by others. 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.
4. 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, 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 has also been conferred on him in this country by Section 2, Powers of Attorney Act, 1882 which runs as follows :-
'The donee of a 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 or 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 instruments executed either before or after this Act comes into force'.
5. 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 so when he is exercising a statutory right no less than when he is exercising any other right'.
Per Stirling, J. in Jackson and Co. v. Napper; in re : Schmidts' Trade-Mark, (1886) 35 Ch D 162, at p. 172 (C).
"This rule is subject to certain wellknown 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".
6. In this connection, Section 188 of the Indian Contract Act, 1872 regarding the extent of the agent's authority also needs consideration which runs thus :
"188. Extent of the agent's authority.-An agent, having an authority to do an act, has authority to do every lawful thing which is necessary in order to do such act.
An agent having an authority to carry on a business, has authority to do every lawful thing necessary for the purpose, or usually done in the course, of conducting such business".
'Agent' has been denned in Section 182 of the Indian Contract Act as a per- son employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented is called the 'principal'. As regards the extent of the agent's-authority under the Indian Law it will therefore be evident that the same is rather similar to the extent of the authority of an agent under the Common Law in England which envisages appointment of an agent by a person who is sui juris for any purpose whatever and permits that such appointment can be made not only when the person is exercising a statutory right but also in a case where he is exercising any other right. The right to appoint an agent for any purpose whatever will however be of no avail where its exercise will be opposed to public policy. The Supreme Court in Ravulu Subba Rao v. I.T. Commissioner (supra) has clearly enumerated the exceptions where a person's right to appoint an agent will not be available, such 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. In this connection, it will be also very relevant to refer to the illustration (a) given under Section 188 of the Indian Contract Act which has been quoted above. The said illustration runs thus :
'(a) A is employed by B, residing at London, to recover at Bombay a debt to B. A may adopt any legal process necessary for the purpose of recovering the debt, and may give a valid discharge for the same'.
This illustration under Section 188 of the, Indian Contract Act also makes it clear that where a person authorises another to recover a debt the latter can on the basis of such authority adopt any legal process necessary for the purpose of recovering the debt. Therefore such authorised agent may file or institute any suit or other legal proceeding for recovery of the debt which the person whose authorised agent he is, is otherwise1 entitled to file or institute. The position in law therefore is that a person can 'appoint an agent for doing what he himself can do except where such delegation will be opposed to public policy, such as, where 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 get the same done through an agent and this is available also in the matter of taking all necessary steps for recovery of a debt. This right to appoint an agent for doing something which the person appointing the agent could himself do can however be curtailed or abrogated in particular area or areas by any legislative enactment either expressly or even by implication. This poposition also receives support from the decision of the Supreme Court in Ravulu Subba Rao v. I.T. Commissioner (supra).
7. The learned Advocate for the opposite party also attracted my attention to Vishwa Mitter v. O.P. Fodder, . In that case a prosecution was started by a dealer who was also the constituted attorney of owner of the registered trade-mark by filing a complaint alleging infringement of trade-mark under the Trade and Merchandise Marks Act (43 of 1958). A contention was raised that the complaint filed by the complainant who was not the owner of the registered trade-mark was not maintainable. The Supreme Court however held that under general law a complaint could be filed by anyone unless there was any restriction of law by way of any prescribed qualification or eligibility of the complainant to file the complaint. Since under the Trade and Merchandise Marks Act there was no such restriction regarding the qualification and eligibility of the complainant in respect of the particular1! category of offence for which the complaint was filed the Supreme Court held that there was nothing wrong in the filing of the complaint by the complainant of that case. In paragraph 6 of the decision in Vishwa Mitter v. O.P. Fodder (supra) the Supreme Court however took note of the fact as a factor favourable to maintainability of the complaint that besides being a dealer the complainant was also the constituted attorney of the owner of the registered trade-mark. This also is a clear indication that even as a constituted attorney of the owner of the registered trade-mark the complainant would have been entitled to make the complaint and thus the locus standi of the constituted attorney of a person to file a complaint on behalf of such person has been recognized by the Supreme Court in the said decision. The learned Advocate for the opposite party also relied upon Puran Chand Nahatta v. Monmotho Nath Mukherjee, 55 Indian Appeals, 81, where it has been held that a document executed by an agent under a power of attorney can be acknowledged for registration under the Indian Registration Act, 1877 by another agent acting under a power of attorney given for the purpose.
8. In going to examine whether a complaint in respect of an offence can be made by a representative on behalf of another or in other words whether the complainant can be represented by another in the matter of making a complaint we may refer to the decision of a Division Bench of this court in Arun Sahu v. Haridas Arora, 1984 Cr. LJ 1028. In that case a complaint was filed by one Sri Nripendra Narayan Roy Choudhury, Assistant Collector of Customs, West Bengal under Section 135 of the Customs Act, 1962 and there the said Sri Roy. Choudhury described himself as complainant in the case in the following manner :
"Union of India
Represented by Sri Nripendra Narayan Roy Choudhury, Assistant Collector of Customs, West Bengal, Calcutta".
At a later stage the matter came up before the High Court in revision and the revisional application was filed by one Arun Sahu, Assistant Collector of the Customs, West Bengal, Calcutta on alleging that Nripendra Narayan Roy Choudhury has since retired and-he was working in the place of Sri Roy Choudhury and had been authorised to file the revisional application. The court in the said decision in Arun Sahu v. Haridas Arora (supra) made the following observation at page 1031 :
"There is no provision in the Criminal Procedure Code for filing of a complaint by a person on behalf of or representing another person. Order 3 of the Civil Procedure Code contains provisions for recognized agents and pleaders. Order 27 of the Civil Procedure Code contains provision as to how plaints are to be filed in suits by the Government. Order 27 Rule 2 of the Civil Procedure Code contains provision for persons; authorised to act for the Government. There is no provision in the Criminal Procedure Code that a complaint can be signed and filed by a person in a criminal court on behalf of another, on being authorised by that other person, alike the aforesaid provisions in Order 27 of the Civil Procedure Code. In such circumstances, complaint of this case being filed by Nripendra Naraiyan. Roy Choudhury representing the Union of India, cannot be said to be not maintainable in the absence of any1 letter of authority from the Union of India as there is no provision in the Criminal Procedure Code that the complaint would have been made valid on the basis of any such letter of authority from the Union of India. A public servant may retire from service, may be suspended, may be dismissed from service and may even die. That is the reason why in cases of this type, involving complain for contravention of law complaints are to be filed in the name of Union of India represented by a particular public servant actually filing the complaint........ We do not thus find any irregularity in the filing of the complaint by Sri Nripendra Narayan Roy Choudhury on showing him as complainant in the petition of complaint, though stating in the cause title of the petition of complaint that he was representing the Union of India".
9. This decision rather supports the legal proposition that a complaint can be filed by one as complainant but representing another in the matter of making the complainant, if there exists no legal bar in the matter. In the present case the complainant who is the constituted attorney and agent of the payee has filed the complaint as complainant in his capacity as such constituted attorney representing the payee of the cheque.
10. We may now consider, from another angle of view, the question as to whether any representation is at all permissible in the matter of making a complaint under Section 142(a) N.I. Act in view of the language of that section requiring the payee or as the case may be, the holder in due course of the cheque to make the complaint. Suppose the payee in a particular case is a company which is a juridical person. Now if the company as payee wants to make any complaint under Section 142(a) of the N.I. Act it will have to be represented by someone else in making the complaint and it cannot be argued that since the company is the payee therefore the company alone will have to make the complaint and there is no scope of any representation of the company in the matter of making the complaint. Sections 63 of the Criminal Procedure Code provides inter alia that the service of summons on a corporation including an incorporated company or other body corporate or a registered society may be affected by serving it on the secretary, local manager or other principal officer of such corporation, company, body or society as the case may be. In Commissioner of South Dum Dum Municipality v. Om Khosla, , it has been held that
when summons is issued against a company under the Criminal Procedure Code some competent representative like the Secretary, Local Manager or other principal officer must be described both by name and by designation as representing the company and there must be some evidence of his representative character. Similarly in the matter of filing of complaint also the necessity of representation of the company cannot be dispensed with. Under Section 200 of the Code of Criminal Procedure a Magistrate taking cognizance of an offence on a complaint is required to examine the complainant an oath. This requirement cannot be complied with unless the complaint is filed by someone as complaint on behalf of or representing the company. Obviously, therefore, where a company has a cause of action for filing a complaint under Section 142 N.I. Act the same can be and rather will have to be of necessity, filed on behalf of the company by someone competent to represent the company. The concept of representation cannot therefore be said to be totally alien to the process of prosecution through complaint. Therefore there is nothing unnatural in the proposition that a complaint under Section 142 can be filed even by an authorised representative or agent of the person in whose favour the cause of action for making such complaint has arisen. There is nothing in Section 142 N.I. Act which can be taken to have curtailed or abrogated the general right of a person, in whose favour a cause of action has arisen, to authorise his agent to make the complaint on his behalf under the said section.
11. The copy of the power of attorney which has been placed before me in this case inter alia authorises the opposite party, the holder of the power of attorney, to take all steps either civil or criminal for realisation of the cheque amount and 'to prosecute or defend all actions, suits and proceedings........relating to the realisation of the said sum........'. It is argued that the power of attorney speaks of steps and actions for or relating to realisation of the sum but not for prosecuting the petitioner. This argument does not seem to be sound. It is needless to mention that prosecution under Section 142 N.I. Act is also a coercive action aimed at realisation of the debt. In fact the term 'cause of action' as used in Section 142 is a term of more familiar use in connection with civil action. An offence under Section 138 N.I. Act being punishable with imprisonment for a term which may extend to one year or with a fine which may extend to twice the amount of cheque or with both is required to be tried as a sumons procedure case. Section 257 Cr. P.C. contains provision for withdrawal of a complainant in summon procdure case by the complainant with the permission of the court and where such withdrawal is permitted by the Magistrate the consequence will be an order of acquittal of the accused. Therefore if under the presure of the proceeding initiated under Section 142 N.I. Act the accused compounds the matter by payment or otherwise to the satisfaction of the complainant, the latter may even withdraw the prosecution with the permission of the court. Even on conviction of the accused the court under Section 357 Cr. P.C. may direct payment of compensation to the complainant if the court so thinks fit. Therefore the filing of a complaint under Section 142 N.I. Act also is a step in the direction of realisation of the debt in view of the provisions of Sections 257 and 357 of the Code of Criminal Procedure. Thus in any view of the matter it must be held that there is nothing wrong in the making of the complaint under Section 142 N.I. Act by the authorised agent of the payee on the basis of the power of attorney executed by the payee in his favour in this respect. This revisional application is therefore dismissed.