NIA S. 138 – Complaint through Power of attorney – Proprietary concern.

Negotiable Instruments Act, 1881, Section 138 – Complant through power of attorney –  During the course of cross-examination if it is  established that the power of attorney holder  has no knowledge regarding the transaction,  then the complaint itself would fail and it is the  risk which has been taken by the complainant by  appointing power of attorney holder – The power of attorney holder being a witness to  the transaction as an agent is a matter which  has been averred in the complaint but  veracity of the same would always be subject to  cross-examination in the proceedings – In the  event of the accused being able to establish  that the power of attorney does not know the  transactions and/or that the deposition given is  not correct or false, the accused could always  succeed in the said matter – At the stage of filing  of an affidavit or recordal of sworn statement it  cannot be said or decided as to whether the  power of attorney is aware of or not of the  transactions.

2023 PLRonline 401600

Negotiable Instruments Act, 1881, Section 138 – Proprietary concern  – In a proceeding under Section 138 of  N.I.Act, the arraying of a proprietor as an  accused or a proprietary concern represented  by the proprietor would be sufficient compliance  with the requirements under Section 138 of  N.I.Act, the proprietor and the proprietary  concern is not required to be separately  arrayed as a party accused.   

Held, Insofar as a proprietary concern is concerned,  as the name indicates there can only be one  proprietor and it is the said proprietor who   would be incharge of the affairs of the  proprietary concern. Thus, it is not required for  any pleading to be made as regards who is the  person in charge of a proprietary concern when  there is only one proprietor. Sardar Bupender Singh vs. M/s.Green Feeds Through Its Partner Vipin Kumar (Panjab  and Haryana) dated 26.08.2022, disagreed.

2023 PLRonline 401600