Power of Attorney Holder Can Continue Criminal Complaint If Original Complainant Is Unavailable: Kerala High Court Overrules Trial Court

The Kerala High Court, in a judgment delivered on 21st February 2025, ruled that a power of attorney holder can validly prosecute a cheque bounce case under Section 138 of the Negotiable Instruments Act (NI Act) even if the original complaint does not explicitly state that the attorney has knowledge of the transaction. The ruling came in O.P.(Crl.) No. 352 of 2024, where the court set aside an order of the Judicial First Class Magistrate Court-II, Mavelikkara, that had dismissed a power of attorney holder’s request to continue the prosecution.

Justice Dr. Kauser Edappagath, overturning the trial court’s decision, held: "When a complaint is filed through a power of attorney holder, there must be an averment that the holder has knowledge of the transaction. However, if the complaint was originally filed by the complainant and the power of attorney holder is later introduced due to the complainant’s absence, the absence of such an averment is immaterial."

"A Complainant’s Absence Cannot Lead to a Denial of Justice"
The case arose when Reshma Raj, a 31-year-old complainant, filed a private complaint under Section 142 of the NI Act against Ramachandran Nair and Harikumar over a cheque dishonor dispute. The Judicial First Class Magistrate Court-II, Mavelikkara, took cognizance of the complaint and issued process against the accused.

During the pendency of the trial, the complainant left for the United Kingdom for her studies and appointed her father, Rajan, as her power of attorney holder to continue the case on her behalf. When Rajan sought permission to prosecute the case, the trial court dismissed his application, holding that the complaint did not mention that he had knowledge of the transaction.

The trial court relied on the Supreme Court’s ruling in Narayanan A.C. v. State of Maharashtra (2013 (3) KHC 885 (SC)) and the Kerala High Court’s decision in Shibu L.P. v. Neelakantan (2022 (4) KLT 592), which state that a power of attorney holder must have knowledge of the transaction if filing the complaint.

Challenging this order, Reshma Raj approached the Kerala High Court, arguing that these precedents were wrongly applied since she had personally filed the complaint and only later appointed her father as an attorney to continue the case.

"Misapplication of Legal Precedents Cannot Frustrate Justice"
The High Court found serious errors in the trial court’s reasoning, holding that the reliance on previous judgments was misplaced.

"The cases cited by the trial court apply only when the complaint itself is filed by a power of attorney holder. In this case, the complaint was originally filed by the complainant herself. The introduction of a power of attorney holder at a later stage due to the complainant’s absence is a different matter and does not require prior averment in the complaint."

The court emphasized that procedural technicalities should not be used to defeat substantive justice, particularly in cases under the NI Act, which involve financial liabilities.

"Cheque Bounce Cases Cannot Be Allowed to Collapse on Technicalities"
Setting aside the trial court’s order, the High Court allowed the power of attorney holder to continue prosecuting the case, stating:

"The trial court’s reasoning is legally unsustainable. The power of attorney holder is permitted to represent the complainant and proceed with the case."

With this ruling, the Kerala High Court has ensured that cheque bounce cases cannot be dismissed solely due to the absence of a complainant when a duly authorized representative is available to continue the prosecution.
 

Date of Decision: 21 February 2025