Power of Attorney in Court proceedings – How and When to file Power of Attorney ?

Evidence and Power of attorney – How and when to file Power of Attorney in  Civil Court  – Criminal Court – Family Court – Labour Court – Rent Control Court – Cheque Dishonored. 

When and How to File Power of Attorney in Court Proceedings ?

Representation by Power-of Attorney Holder in Civil Cases:

A party to the Court Proceedings may be represented by a Power-of Attorney holder duly authorized by the Party/Principal. Under Order 3 Rule 1 & 2 of Civil Procedure Code any appearance application or act in or to any Court except otherwise provided by any law made or done by the party in person or by his recognized agent or by a pleader on his behalf. Order 3 Rule 2 of C.P.C. specifies the Power-of-Attorney holder as recognized agents for the Party. Therefore the power-of-Attorney holder who is authorized to appear on behalf of the party can appear, file application engage advocates and act on behalf of parties. The process to be served to the Party shall be served to the power agent[Order 3 Rule 3 C.P.C.] Besides the recognized agents, any person residing within the jurisdiction of the Court may be appointed as agent to accept service of process [Order 3 Rule 6 C.P.C.] The appointment may be special or general and shall be made by an instrument in writing signed by the principal and such instrument or, if the appointment is general, a certified copy thereof shall be filed in Court. The Court may, at any stage of the suit, order any party to the suit not having a recognized agent residing within, the jurisdiction of the Court, or a pleader who has been duly appointed to act in the Court on his behalf, to appoint, within a specified time, an agent residing within the jurisdiction of the Court to accept service of the process on his behalf. Rule 16 and 17 of the Civil Rules of Practice [T.N.] enumerates the procedure to file power of attorney by the agent and recognizing the same by the Court as follows:

Rule 16 : PARTY APPEARING BY AGENT:

  • When a party appears by an agent other than a pleader or advocate the agent shall before making or doing any appearance, application, or act in or to the Court file in Court the power of attorney or written authority thereunto authorizing him, or a properly authenticated copy thereof/ or in the case of an agent carrying on a trade or business on behalf of a party without a written authority an affidavit stating the residence of his principal, the trade or business carried on by the agent on the behalf and the connection of the same with the subject matter of the suit and that no other agent is expressly authorized to make or do such appearance, application or act.
  • The judge may thereupon record in writing that the agent is permitted to appear and act on behalf of the party and unless and until the said permission is granted no appearance, application or act of the agent shall be recognized by the Court.

Rule 17 : SIGNING OR VERIFICATION BY AGENT:

If any proceeding which under any provision of law or these rules is required to be signed or verified by a party is signed or verified by any person on his behalf a written authority in this behalf signed by the party shall be filed, in Court. Together with an affidavit verifying the signature of the party and stating the reason of his inability to sign or verify the proceedings and proving the means of knowledge of the facts set out in the proceeding of the person signing or verifying the same. Relevant Rules from the Madras High Court Original Side Rules with regard to filing of proceedings before High Court by the power of attorney:

Rule 7 Order II : 

Affidavit of recognized agent as defined in Order III, Rule 2, Civil Procedure Code to be filed: Except as provided for by the Code if a plaint is subscribed and verified by a person other than the party on whose behalf it is presented it shall not be admitted or filed unless it is made to appear, upon affidavit that such person is a recognized agent of the party as defined by Order III Rule 2 of the Code and is duly authorized and competent so to do.

Rule 37 of Order XXV:

Registrar may require further proof of execution of Power of Attorney: Unless a power of attorney constituting such attorney can under section 85 of the Indian Evidence Act, 1872 be presumed to have been executed and authenticated as in the said section mentioned, the Registrar may require further proof of its due execution.

Rule 1 of Order XXIX:

Application for execution to be made to the Registrar:
All application for the execution of decrees or orders whether of the High Court or of any o0ther Court (except as otherwise provided by these rules) shall be made by advocates or by parties in person to the Registrar. The transmission of decrees and the issue of all necessary warrants and notices by him and all amendments thereof shall be deemed quasi-judicial acts.

Procedure in filing power-of-attorney in Civil Court:

When the Power-of-attorney holder appears for a party he has to file:

  • Authenticated copy of the Power-of-Attorney to be filed. The Original power-of-Attorney may be produced to the officer of the Court for verification and will be taken back after due verification.
  • A petition with supporting affidavit to be filed along with an affidavit under Rule 16(2) of Civil Rules of Practice[T.N.] seeking permission to appear and act on behalf of the principal/Party as a recognized agent. The Attorney (agent) should also state that the executor is alive at the time of filing the suit and further to aver that the power of attorney is still in force.
  • The attorney should state in the affidavit verifying the signature of his principal and stating the reasons for the principal’s inability to sign or verify the proceedings and proving the means of knowledge of the facts set out in the proceedings by the attorney signing or verifying the same. The agent also should aver that no other agent is expressly authorized to make any such appearance or application or do such an act.
  • With regard to filing of the cases and taking part in the proceedings by the power of attorney holder, in the proceedings before the Madras High Court (Original Side) the Madras High Court Original Side Rules recognizes the power of attorney executed and authenticated as per section 85 of the Indian Evidence Act only. In all other kinds of power-of attorney if needed the Registry may require further proof of due execution of the power-of-attorney relied upon.
  • In the true copies of the power-of-attorney a Court fee of Rs.5/- to be affixed as per the Article15, Schedule II of the Tamil Nadu Court Fees and Suits Valuation Act 1955.

Appearance by power agent in Court: In Surender Raj Jaswal Vs. Smt. Vijaya Jaiswal [AIR 2003 AP 317], the question as to whether the General Power of Attorney holder of the respondent is entitled to appear and prosecute the case considered. In this case the plaintiff gave power of attorney to her husband who is well acquainted with the facts of the case and who is looking after her affairs. The Court permitted the plaintiff’s power of attorney holder under Rule 32 and 33 of Civil Rules of Practice (A.P.) to prosecute the case of the plaintiff by tendering evidence. The Power of Attorney holder cross examined the defendant which was agitated by the defendant. It was held that when the trial Court permitted the power agent to prosecute the case and to cross examine the witnesses, the said agent was helping the Court by appearing for the plaintiff and there was no remark noticed by the trial Court. It was held further that it is always open to the Court to withdraw or cancel permission if the power of attorney holder is unworthy or reprehensible. When can a General Power of Attorney holder give evidence:When once a person files a suit on behalf of the party, as a G.P.A. holder he enters into the shoes of that party and except to the extent of personal knowledge, he is entitled to depose on other facts. In the instant case, what was relied upon by the plaintiffs is entirely documentary evidence, which are public documents and no personal knowledge was required to be pressed into service to establish the case of plaintiff [Secretary to Govt. of India Vs. Indira Devi, AIR 2003 A.P. 329 (DB)] In Shanthi Devi Agarwal Vs. V.H. Lulla [AIR 2004 M.P. 58], the Madhya Pradesh High Court while considering letting of evidence by Power-of-Attorney holder held that a power of attorney holder, who virtually steps into shoes of a party can place materials in terms of the definition of ‘evidence’ as above, on behalf of that party, before a Court under Section 118 of the Evidence Act unless he stands disqualified for the reasons given in that section itself and further, admissibility of his evidence would be subject to rigorous procedure contained in Chapter X thereof. That apart a bona fide requirement is also with reference to family and it can be proved by any member of the family. In the instant case old age of the plaintiff is a good ground that her son, the power of attorney holder, should have been allowed to tender evidence on her behalf. In P.Punnaiah Vs./Jeypore Sugar Co. Ltd.,[AIR 1994 SC 2258], the Supreme Court held that the normal rule is that whatever a person can do himself, he can do it through his agent, except certain functions which may be personal in nature or otherwise do not admit of such delegation. In Humberto Luis Vs. Floriano Armando Luis [2000 AIHC 1572 (Bom.) = 2000(1) Mah LJ 690] it was held that a person holding a power of attorney can depose in the witness box on behalf of the party. In Moulasab Vs. Sri Mohammed Hasim deceased by LRs and others [2003 (1) KCCR 239 = ILR 2003 (2) Kar 1041 =2003(2) KLJ 48]. It was held that the recognized agent holding GPA cannot be allowed to plead and argue. He can only appear and conduct the judicial proceedings and has no right of audience. Power to plead on behalf of a party to judicial proceedings is vested only with the pleader. This is very clear from the provisions contained in Order 3, Rule 2 and Order 3 Rule 4 of CPC. In Jaymal Thakore Vs. Charity Commissioner, Ahmedabad [AIR 2001 Guj. 279], it was held that a chartered accountant holding a power of attorney can file application on behalf of a party in the proceedings but he cannot act as pleader for the party as contemplated by the provisions of the Advocate Act.

When Power of Attorney holder cannot give evidence :

In a latest Supreme Court case Janki Vashdeo Bhojwani Vs. Industrial Bank Ltd., [(2005) 2 SCC 217 =AIR 2005 SC 439 =2005 (3) CTC 128 (SC)], It was held that power of attorney holder cannot depose for principal in respect of matters of which only the principal can have personal knowledge and in respect of which principal is entitled to be cross-examined. It is further observed that persons claiming share in property should have entered the witness box and discharged burden. The power of attorney holder cannot enter a witness box and depose instead of persons claiming such share. Such persons have to show that they have got an independent source of income and they contributed for the purchase of property from such independent income. It was observed that where a person does not appear in a witness box and state his/her case on oath and does not offer to be cross examined by the other side, the presumption would arise that the case set up by such person is not correct.

In S.Padmavathamma Vs. S.Sudha Rani [AIR 2004 AP 309] the Andhra Pradesh High Court held that the general power of attorney holder can appear as a witness only in his personal capacity. He cannot appear as witness on behalf of the plaintiff in the capacity of plaintiff as he cannot speak about the facts which are within the personal knowledge of the party. The Court approved that a power of attorney is not a substitute for his principal, and he cannot speak about the facts which are within the personal knowledge of the party.

In R.Subba Rao Vs. Commissioner of Income Tax, Madras [AIR 1956 SC 604], the Supreme Court held that under rule 6 of the Income Tax Rules a person who seeks relief under the section 26 A of the Income Tax Act, 1922 for Registration of Firm the partner alone is a competent person to sign on the form and the agent has no such power. It is observed and distinguished in P.Punnaiah Vs.Jeypore Sugar Co.Ltd.,[AIR 1994 SC 2258], as the matter arose under section 26(A) of the Indian Income Tax Act, 1922 read with Rules 2 and 6 of the rules framed in that behalf. The Rules provided that an application for renewal of registration of the firm “shall be signed personally by all the partners”. It is because of the said requirement that it was held that the partners must sign such a application personally.

In Kailashi Devi Vs. Matadeen Agrawal [AIR 2001 Raj 306], it was held that the power of attorney holder is a competent witness and is entitled to appear as such. His statements in the Court cannot be ignored or it cannot be said that the statement of such a witness shall not be read in evidence only because of the reason that he had appeared as power of attorney and the parties to suit i.e. plaintiff or defendant do not choose to appear as a witness in witness box. His evidence is to be evaluated as per his deposition before the Court and in case the Court finds that evidence or such power of attorney does not depose confidence, the Court is at liberty to evaluate the same. There is no jurisdiction with the Court to say that the evidence of such person shall not be read at all and that the plaintiff must appear in the case in her support.

In Smt.Gangavva Vs. Arjunsa [AIR 2001 Kant.231] it was held that the attorney of plaintiff can be examined for and on behalf of the plaintiff as her substitute. There is no express bar made in the provisions of C.P.C. to debar the power of attorney to be examined as a witness on behalf of the parties to the proceedings. A party without examining himself can as well establish his case if possible by examining the witnesses who are competent to testify. However, in cases where there is onus placed on the party to discharge and if the facts required to be deposed are necessarily to be testified by the party in person, in such a situation, however, such a party runs the risk of facing adverse inference for non-examination . Otherwise, it also open to the party to give evidence through the power of attorney and such evidence would be a valid substituted evidence of the plaintiff.

Power of Attorney and Advocate :

In Thaamammal Vs. Kuppuswami Naidu (M.Krishnamal Vs. T.Balasubramania) [AIR 1937 Mad.937 (1937) 2 MLJ 552 (FB), the Full Bench of the Madras High Court observed that the power of attorney agent cannot be accorded all the rights and privileges which are enjoyed by members of legal profession and cannot carry-on business as a solicitor or attorney drafting engrossing and filing plaints, judge’s summons, affidavits and generally issuing legal process and charge fees to the principal. Hence, the power of attorney is not entitled to appear and conduct the proceeding himself or appoint an advocate to appear for him as his power of attorney and authorize him to plead.

In Divaliben Vs. Mavijibhai Vasanjibhai Ahir [AIR 1995 Guj.151], it was held that a power of attorney holder of a party can certainly be examined as a witness in any proceeding. A power of attorney holder is given power to act on behalf of the person giving such power. That would possibly include all acts which a party could do. If the power of attorney holder has no personal knowledge as to certain facts deposed by him at trial, his evidence can be disbelieved or even discarded. Simply because he is examined as a witness at trial on behalf of a party, it cannot be said that there was a defect in following the procedure provided by the Act. The Code nowhere prohibits examination of a power of attorney holder as a witness in any proceeding. Even a third party can be examined as a witness on behalf of a party to the proceeding.

In Mannlal Vs. Bherulal [AIR 1965 Mys.272], it was held that power of attorney executed for doing all acts and things necessary in connection withy suits gives imp0lied authority to attorney to bring suits on behalf of a minor represented by next friend without consent of next friend.

In Sikhar Chand Vs. Santi kumar {2002 AIHC 575(Raj)] it was held that a person holding power of attorney can appear as a witness for the party and not as a plaintiff. The plaintiff has to discharge the burden of proving a certain fact/issue which the law requires him to do so.

In State Bank of India Vs. Prem Dass [AIR 1998 Del. 49], it was held that in a suit for recovery of loan by the Bank a person notified on the gazette and under bank with regulations is competent to sign and verify the plaint.

In a complaint under section 138 of the Negotiable Instruments Act, the original complainant died. The legal heirs of the deceased complainant appointed agents under power of attorney to proceed with the complaint. The power of attorney holders filed petition u/s 302 of Cr.P.C. to continue the prosecution. In this case the Supreme Court held that neither heirs of the complainant who filed petition u/s 302 of the Code to continue the prosecution nor any permission was sought by them from the competent Court that they should be allowed to continue the prosecution through their power of attorney holders, rather the prayer was made by the power of attorney holders, which is not permissible under law. But the liberty was given to the heirs either to make application themselves before the Court concerned to continue the prosecution or apply to the Court to grant permission to them to authorize a power of attorney holder to continue the prosecution on their behalf.[Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley AIR 2005 SC 48 = (2204) 12 SCC 509]

Defective Power of Attorney and replacement by second one :

In Jugraj Singh Vs. Jaswant Singh [AIR 1971 SC 761] the Supreme Court held that when the first power of attorney was not complied with the requirements of the law and was ineffective and was not authenticated as required by section 33 of the Indian Registration Act, 1908, a second power of attorney with proper authentication by a Notary of the foreign country is valid. It was further observed that the second power of attorney being a document ratifying a former inconclusive act related back, to the time when the first document was made and cured the illegality in the presentation for registration which had taken place.

Non-filing of power of attorney at the time of initiation of the proceedings whether fatal:

In Ashok Kumar Vs.Gobind Dhandra [AIR 1984 Cal. 337], it was observed and pointed out that during the course of hearing, it was transpired that Mr.P.N. Mukherjee, the learned advocate on record of the appellant had not filed his power of attorney and on such a further point for consideration arose as to whether because of such admitted non-filing of the power at the initiation of proceedings. The present application and all the orders obtained earlier or passed by the court. It was held that non-filing of the power of attorney at the initial stage was a mere irregularity, which could be cured.
The power of attorney was not filed at the time of filing of the suit. But ratification of earlier power of attorney was produced by the principal. It was held that the agent can not be deemed to have taken authority on behalf of the principal for prosecution of the cases by producing originals hearing altogether different dates [State of Karnataka Vs. M. Muniraju, AIR 2002 Kant. 287].

A plaint in a suit filed on behalf of a Bank was signed and verified by its manager who under the Articles of Association of the Bank was authorized, with the previous sanction of the directors, to take legal proceedings to recover the dues of the Bank. He did not hold any power of attorney on the date of the suit. On an objection by the defendant, an amended plaint was filed by the Bank stating that the Bank had, by its resolution, confirmed and ratified the manager’s action. The Court allowed the amendment of plaint. On revision against the order held that as the initiative to institute the suit could be properly transferred to the Manager under the Articles of Association, the subsequent ratification of the act of the agent by the principal could cure the original defect. AIR 1936 Lah 321 and 25 All 635. Relied on AIR 1932 Lah 388 and AIR 1935 Lah 345 distinguished [Kirpal Chand Vs. The Traders Bank Ltd., AIR 1954 JandK 45]. A Power of attorney filed at a later stage within limitation period in execution proceedings can be acted upon [Addeison J Vs. Chhajju, AIR 1929 Lah 478].

Power of Attorney in Family Court : 

Representation of power of attorney holder in Family Court:Papers may be presented in the Family Court by the Power of attorney:In the Family Court the petitioner shall have the right to present the papers through a recognized agent other than legal practitioner, as contemplated U/O 3 R 1 of C.P.C. [Syed Amina Beevi,S.M., Mrs. Vs. Mr.Thaika Sahib alim, 1993-2-L W 604 (Mad.) = I (1994) DMC 557]

A Divorce petition was filed by husband on the ground of cruelty. After the chief examination, cross examination and re-examination of the petitioner (husband) was over, and when the wife was being examined in chief Family Court passed order allowing the petition filed by husband praying that his presence may be dispensed with as the husband’s father and power of attorney holder informed the Court that the husband has proceeded to Saudi Arabia, the petition filed on behalf of the husband was held to be permissible in such peculiar circumstances [Dr.K.Malathi Vs. Dr. S.Rajasekaran, 2003 – L.W. 870 (Mad.)]

An authorized agent can represent in the Family Court but whenever the presence of party is necessary, the party must be present [Pavithra, represented by power agent S.Rajkumar Vs. Rahul Raj, 2003-2-L.W. 431 (Mad.)].

Power of Attorney in Rent Control Court : 

Petition for eviction by the power of attorney holder from landlady: Under the power of attorney, power is given to the attorney to carry out repairs, remodel, renovate, reconstruct or alter all or any of the properties, incur the necessary expenses for the same and engage qualified workman to carry out the said items of work. The undertaking in the present case is therefore, one coming within the meaning of section 14(2) of the Tamil Nadu Buildings(Lease and Rent Control) Act, 1960, and the principal or landlord cannot escape the penal consequences for the non performance of the undertaking by astute arguments or contentions on the basis that the undertaking was only given by the agent [S.A.M. Jameema Beevi Vs. Easwarlal Patel,1979-2-MLJ 355 (Mad.)].

Power of Attorney in Labor Court : 

A power of attorney holder from an employer held, not liable for Provident Fund contributions for period before and after it was in force. The petitioner was a power of attorney holder from the employer of a proprietary establishment and he challenged in his petition a direction by the Provident Fund authority to pay large sum of Provident Fund dues. The High Court held the petitioner was liable only for the period during which the power of attorney was in force and not for period before or after that. While on this, it was observed that the Powers of Attorney Act of 1882 indeed requires a thorough examination, so as to plug the loopholes, and cover areas, where essentially more legislative attention is necessary. Situations have come before Courts, when it had been felt that a better statement of rights and liabilities of parties and areas where the facility could and should not be resorted to are to be concisely defined [Sajeev T.K. Vs. Provident Fund Commissioner, 2004 – III-LLJ (Ker.)].

Power of Attorney in Criminal Court : 

Complainant through Power-of-Attorney holder cannot file a Criminal Complaint under section 500 IPC: A Complainant residing in Dubai executed a power-of-Attorney in favor of another person to file complaint for offence under section 500 IPC. It is observed that Section 199(1) of Code of Criminal Procedure lays down that where a complainant is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint or is a woman who according to the local customs and manner, ought not be compelled to appear in public some other person may with the leave of the Court make a complaint on his or her behalf. Complainant residing outside India cannot authorize a person through power-of attorney to file a complaint U/S 55 IPC[Fr.Thomas Maniankerikalam Vs. Thomas J Pudiyath, 2005(3) CTC 567 (SC)].

In T.C.Mathai Vs. District and Sessions judge,Thiruvananthapuram [AIR 1999 SC 1385 = 1999 Cri.L.J. 2092 (SC), the Supreme Court pointed out that the accused cannot appear through a power of attorney holder unless permission for such appearance is sought by the accused himself and the Court expressly granted such permission.
In T.C. Mathai Vs. District and Sessions Judge, Thiruvananthapuram [1999 Cri.L.J. 2092 (SC), the Supreme Court pointed out that a power of attorney holder who is not authorized by Court cannot become a pleader and cannot appear for the accused before the criminal Court like that of an advocate.

POWER-OF-ATTORNEY IN CHEQUE DISHONOUR CASES (COMPLAINT U/S 138 OF NEGOTIABLE INSTRUMENTS ACT,1881)

Power-of-attorney holder of legal heirs of the deceased complainant cannot file petition to continue the prosecution: U/S 138 of the N.I. Act, the original complainant died. The legal heirs of the deceased complainant appointed agents under power of attorney to proceed with the complaint. The power-of-attorney holders filed petition U/S 302 of Cr.P.C. to continue the prosecution. In this case the Supreme Court held that neither heirs of the complainant filed petition U/S 302 of the Code to continue the prosecution nor any permission was sought by them from the competent Court that they should be allowed to continue the prosecution through their power-of-attorney holders, rather the prayer was made by the power-of-attorney holders, which is not permissible under law. But the liberty was given to the heirs either to make an application themselves before the Court concerned to continue the prosecution or apply to the Court to grant permission to them to authorize a power-of-attorney holder to continue the prosecution on their behalf [Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley, AIR 2005 SC 48 = (2004) 12 SCC 509].

Guidelines to file complaint by power of attorney holder:
A complaint can be presented by General power of attorney on behalf of the payee, provided

  • the complaint shall be signed by the payee himself,
  • there shall be also an affidavit of the complainant in proof of his execution of GPA added to the production of the said power-of-attorney document
  • a sworn statement of GPA can be recorded on the date of presentation of the complaint
  • a sworn statement of payee (complaint) shall have to be taken at a future date on his appearance in Court, the Magistrate shall thoroughly examine the statements of GPA holder as well as the original complaint and the documents produced before him and exercise his discretion vested under sections 202 and 203 of Cr.P.C. The above guidelines are not exhaustive and in other circumstances the Magistrate shall exercise his discretion judiciously and in conformity with other provisions of law applicable [Y. Vijayalaskhmi @Rambha Vs. Manickam Narayanan, Proprietor, Seventh Channel Communications, reptd. By its power-of-attorney Agent, Thanigaivelan, 2005(3) CTC 480 (MAD) – Date of judgment 8/6/2005]

A power-of-attorney holder cannot depose for principal in respect of matter of which only the principal can have personal knowledge and in respect of which the principal is entitled to be cross examined [Janki Vashdeo Bhojwani Vs. Industrial Bank Ltd., (2005) 2 SCC 217 = 2005 (3) CTC 128 (SC) – AIR 2005 SC 439]. The power-of-attorney of a payee or a holder in due course of a dishonoured cheques can file a complaint for an offence U/S 138 of N.I.Act after obtaining permission from the Court, either before or after filing of the complaint [Ramachandra Rao K Vs. State of A.P., 2005 (2) CTC 417 (A.P.-FB) = 2005 (2) ALT 607].

Representation by subsequent person:

No Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. It has been held that there may be occasions when different persons can represent the company. It has been held that it is open to the dejure complainant company to seek permission of the court for sending any other person to represent the company in the court [M/s M.M.T.C. Ltd., Vs. M/S Medchl Chemicals & Pharma (P) Ltd., 2002 (1) Crimes 156 (SC) = 2002 Cri.L.J. 266 =AIR 2002 SC 182 = (2002) 108 Comp. Cas 48 =(2002) 1 SCC 234].

Notice on behalf of power-of-attorney holder by Advocate:

Power-of-Attorney holder of payee instructing an advocate to send notice. The said notice is valid [S.G.Pandalai Vs. Jacob C. Alexander & State of Kerala, 2002 (108) Comp. Cas. 841 (Mad)].

Notice by power-of-attorney:

Notice on the instruction of power-of-attorney holder is valid [S.G. Pandalai Vs. Jacob C.Alexander, 2000 Cri L.J. 2155 (Ker) =2000 (3) Crimes 232].

Complaint by power-of-attorney holder:

A power-of-attorney holder of a payee or holder in due course can make a complaint U/S 142 of the N.I. Act, but still the principal has to bear the ultimate responsibility [Hamsa Vs. Ibrahim, 1994 (1) Crimes 395 (Mad.) See also Manimekalai Vs. Ghopaldas Kalyanji Sanghvi, 1995 CriLJ 1102 (Mad.), Sova Mukherjee Vs. Rajeev Mehra 1997 (2) CCR 313 (Cal.)]

If a power of attorney agent can act instead of an individual payee or a holder in due course, it will equally be competent for a power-of-attorney agent of a company explained U?S 141 of the N.I.Act, meaning any body corporate including a firm or other association of individuals to file a complaint on behalf of the company. But, it has been observed that a non-filing of authorization while taking cognizance would bar the impugned complaint U/S 142(a) of the N.I.Act [Ruby Leather Exports Vs. K. Venu Reg. Vandana Chemicals etc., 1994 Crimes (1) 820 (Mad.)]

Non-filing of power-of-attorney at the time of filing complaint :

The Manager of the company who has not filed power-of-attorney at the time of filing complaint and not being the payee of the cheques cannot file the complaints [Sudesh Kumar Sharma Vs. K. Selvamani 1994 -1- L.W. (Crl.) 337 (Mad.) = 1995 (1) KLT (SN 14)]

Fresh Power-of-attorney in the place of previous power-of-attorney: The power-of-attorney holder should be permitted to file complaint U/S 138 of the N.I. Act. There is nothing wrong in substituting a fresh power-of-attorney holder or representative of the company in the place of previous power-of-attorney holder or representative {Benhur T. & I. Pvt. Ltd., Vs. State of Kerala 1995 (2) KLT 985 (Ker.)]

Complaint filed basing on power-of-attorney is valid:

It is well settled that any person can set the criminal law in motion and as such, a complaint regarding an offence, can be filed by any person who knows about the commission of the offence[Dr.Pradeep Mohanbhay Vs. Mr.Minquel Carloes Dias, 2000 (102) (1) Bom LR 908].

Cheque issued by power-of-attorney holder: Principal is liable:

The principal is always bound by the act of power-of-attorney holder. A cheques issued by the constituted attorney in partial discharge of debt deemed to be issued by the principal and the principal is liable for prosecution [Smt. Sova Mukherjee Vs. Rajiv Mehra[ 1 (1997 CCR 135 (Ca.l.)]

Without an authorization a complaint cannot be filed :

Without an authorization a Director or any person similarly situated cannot maintain a complaint U/S 142 of the N.I.Act [Swastik Coaters Pvt. Ltd. Vs. Deepak Brothers 1997 Cri.L.J. 1942 (A.P.)]

Subsequent filing of power-of-attorney is valid:

Complaint filed on 24/9/97 authorization to Manager only on 17/11/97, subsequent to filing a complaint. The authorization held to be valid, subsequent authorization given cannot be thrown out on the ground that there was no authorization at the time of filing complaint [Modern Denim Ltd., Vs. Luca TVS Ltd. 1999 (3) CTC 143 (Mad.)].

A power-of-attorney holder cannot represent for accused:

When the code requires appearance of an accused in a court it is no compliance with it if a power-of-attorney holder appears for him. T.C.Mathai Vs. Dist. & Sessions judge, Thiruvananthapuram, 1999 Cri. L.J. 2092 (SC)].

Procedure to be followed before initiating prosecution U/S 138 of Negotiable Instruments Act by the Power-of-a-Attorney holder : 

Any payee or a holder in due course of a cheques may initiate prosecution if the cheques has been duly presented in time and dishonored for want of funds in the Account of the drawee or on such other grounds stated in the statute, after giving the requisite notice on this behalf. A complaint U/S 200 Cr.P.C. read with Section 138 Negotiable Instruments Act shall be filed in the competent Magistrate Court or initiating prosecution against the drawer of the Cheque. But there is an impediment with regard to filing of the complaint by a payee or a holder of the cheques who is unable to personally initiate action due to ill health, old age, frequent absence in the jurisdiction of the Court.

Generally in Magistrate Courts, a private complaint has to be presented by a party-in-person or by his pleader. Further the proviso in Section 199(1) of Cr.P.C. with regard to prosecution in defamation cases states that a person who is unable to make a complaint by himself may present a complaint, only with the leave of the Court, Recently in Fr.Thomas Maniankerikalam Vs. Thomas J Padiyath 2005(3) CTC 567 the Supreme Court in a complaint initiated in a defamation case by a power-of-attorney holder without the leave of the Court has held that the complaint is not maintainable.

Applying the same analogy, it is clear that unless an app0lication seeking leave to prosecute is filed and orders are obtained, no complaint u/s 138 of the N.I. Act can be filed by a power-of-attorney holder on behalf of his principal. In K.Ramachandra Rao Vs. State of A.P. 2005(2) CTC (FB) 417 the Full Bench of the Andhra Pradesh Court has held that the power-of-attorney of the payee or the holder in due course of a dishonored cheques can file a complaint for an offence u/s 138 of the N.I Act after obtaining permission from the Court either before or after filing of the complaint.

Rule 111 of the Criminal Rules of Practice as applicable to the State of Tamil Nadu runs as follows:

Complaints to be presented in person or by pleader: All complaints applications etc. shall be presented to the Magistrate by a party in per5son or by his pleader.

The complainant shall present along with the complaint as many copies on plain paper of the complaint as the number of accused persons complained against.
Therefore in order to maintain a complaint U/s 138 of the N.I. Act by a power-of-attorney holder he has to seek the leave of the Court to file a complaint.
For instance if the Managing Director of a Company is at Mumbai and there are various branches throughout India, he cannot sign in all the Complaints filed by the Company in various places. So the direction given by the Madras High Court in Vijayalakshmi Y @ Rambha Vs. manickam Narayanan 2005(3) CTC 480 requires reconsideration.

19 thoughts on “Power of Attorney in Court proceedings – How and When to file Power of Attorney ?

  1. Thanks to the author for his pains taken in providing such a good position of law regarding reprentaion of agent through power of attorney in legal proeedings. Wish he continues such endeavour.

    visweswara Rao

  2. Article is very informative indeed. Author a general inquiry, is there any case law whereby the P.O.A has given evidence and the process of cross examination is also done after this if the original party wants to give evidence. Can the party be permitted to give evidence?

      1. I have a question. I am trying to locate and/or find information regarding me having power of attorney over my father and me being able to file a civil complaint on his behalf. Can I do this? If so can I also appear as him in the court room. I am trying to see if I can I file his civil case for a criminal case that he was not awared his full restitution and I want to make sure that he can further medical care if needed in the future. I also want him to get wages that he lost. Can I do this as an power of attorney holder?

  3. Rekha Ji Prasad.

    Happy Evening .

    Cheque in question U/S 138 of NI Act is in the name of Karta( HUF)[ Payee ]

    The complaint is by the Karta ,in individual capacity .

    Complainant is neither the Payee nor holder in due course !

    No where in the complain is there even a whisper that the complaint is on behalf of the HUF , in the capacity of the Karta .

    The words
    1. “on behalf of ” Payee HUF or
    ..2.In the capacity of Karta of the HUF
    are conspicuous by their absence !

    Throughout the complaint the complainant is stressing that he is before the court as an individual , money lender n not as the karta of the HUF , on behalf the HUF ,who is the payee in the cheque in question !

    This issue was not considered at the Trial Court where the writer here is found guilty.
    The issue was not even considered at the session Court Appeal level too where the Trial Court judgement was reversed on another ground .

    Now the matter is before the Hon. High Court and I am appearing party in person to plead my own case.
    Section 142(a) Complaint must be filed in writing by the Payee of the cheque in question or the Holder in due course.

    As the complaint is not made by the Payee or the Holder in due course or through a authorised representative of the Payee , or Karta of the Huf , the essential ingredient to attract Penal Provisions of Section 138 of NI Act are conspicuous by their absence.
    As I layman I have tried to submit necessary details for your perusal. and I am always at your service to answer your queries anytime please.

    Hence kindly guide me n bless me please.

    warmest regards with deep gratitude..

    Mahendra B Jain, Belgaum.
    09341100130
    08880757555

    Sincerely await your positive response !

  4. Hello ,

    I have filed a partition suit and my father is expired, i am the GPA holder in the case , i have produced certified copy of the WILL taken from the subregistrar office and the original is misplaced. Is there any judgement which says CC of the will can be taken as evidence and i can as a GPA holder can give evidence..

  5. I am a practicing lawyer & Notary at Pathanamthitta, Kerala. Of late, it has been observed that major financial companies like chit agents, execute a power of attorney for filing cases and carry on using copies of it by filing copies of the same before different courts. Modus operandi is that they obtain a certified copy from the court where it was initially produced and photo copies are taken which are then notarised.
    The original Power of attorney itself is vague eg. “I, managing director authorize xxx to file case against the defaulters and recover money due to the company”. Person will be named but not the court or the person against whom the case is to be filed. Stamp Act is violated since stamp [paper is not used or POA adjudicated by payment of amount as per stamp act. Copies of a copy (of course, notarised) is being used even after 1`0 years. Suppose the transaction in question is in 2000. The copy produced is executed in 1995.
    Questions- What about stamp duty applicable to govt
    what about notarization and the revenue thereon
    Copy of POA is defined in S.4 of POA Act. Can the court accept the notarised copy of a certified copy of a POA.
    Suppose the criminal case is acquitted and the court decides to initiate steps against complainant and in case of punishment, then whom the court should proceed against, executatent or Attorney.

    is perpetual use of copies of POA permitted.
    Is it not necessary that board proceedings authorizing the Managing director ro be produced in support of his claim that he is authorized to prosecute or attend legal matters of company
    If such a power is given in his favor, can he further authorize some one else as Attorney, without specific authorization by the board to that effect.
    Phone number- 09847155159

  6. Firstly, I congratulate the author of this article for his in-depth research and diligence in presenting it in a logical and thorough manner. I have one query though. I need to know whether a person can at a time, appoint more than one person, jointly and/or severally as his Constituted Attorney to represent him and to act for and on his behalf in a Family Court in India.

  7. Sir,

    Instead of power of attorney, can file a suit with Letter of Authority? Does Order 3 rule 6(2) applicable to LOA? Does notary authentication required for LOA? please clarify!

  8. Thanks so much for the article. Can a holder of letters of administration in an estate give powers of attorney to another person to institute a case using the said letters?

  9. Very good article on position of GPA holder in legal proceedings. I congratulate the author for her research skills and neat articulation of the subject.
    Dr.Jagadish S. Halashetti
    Advocate
    Bengaluru.

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