Justice G. Girish of the Kerala High Court recently ruled that the incompetence of a Power of Attorney (POA) holder to file a complaint cannot be used to challenge a conviction during the revision stage if the objection was not raised earlier. In a decision published on May 19, 2026, at 6:30 AM IST, the court clarified that procedural challenges regarding the authorisation of a representative must be brought forward during the initial trial. The ruling specifically concerns cases involving Section 138 of the Negotiable Instruments Act (NI Act), which governs the prosecution of cheque bounce offences.
The court’s decision was rooted in Section 465 of the Code of Criminal Procedure (CrPC). This provision ensures that a finding or sentence passed by a competent court remains valid despite errors or irregularities unless such an error resulted in a “failure of justice.” Justice G. Girish emphasised that when a defendant fails to contest the legal standing of the person filing the complaint during the trial, they effectively waive the right to use that technicality as a ground for reversal later.
This holding addresses a common point of contention in financial litigation where companies or individuals use agents to manage legal filings. While the law permits a cheque bounce complaint through a Power of Attorney, the representative must typically possess personal knowledge of the transaction. However, the High Court has now made it clear that any dispute over this qualification is a matter for the trial phase, not the revision stage.
Legal requirements for Power of Attorney holders
Under the established legal framework, a POA holder is competent to file a complaint and depose as a witness on behalf of the payee. For such testimony to be credible, the representative must have witnessed the underlying transaction or possess due knowledge of the events leading to the cheque’s issuance. The complainant is required to make a specific assertion in the original complaint regarding the agent’s knowledge of the transaction to satisfy the court’s requirements for taking cognizance of the offence.
But the burden also falls on the accused to be vigilant. If a defendant participates in the trial without questioning the representative’s authority, the judiciary views the subsequent challenge as a tactical delay. This principle is consistent with other high court rulings where technical defaults do not automatically shield defendants, much like how directors remain liable for cheque bounce issues even when a company undergoes an insolvency resolution process.
The role of Section 465 CrPC in maintaining convictions
Justice G. Girish referred to Section 465 of the CrPC as a safeguard against overturning convictions on purely technical grounds. The court noted that the competence of a POA holder to institute the case is a procedural matter. If the trial court has already examined the evidence and reached a conclusion on the merits of the cheque bounce, the High Court will not entertain late-stage objections that should have been part of the initial defence strategy.
The following table summarises the legal standards and judicial positions regarding Power of Attorney holders in Section 138 NI Act proceedings as of May 2026.
| Legal Aspect | Standard Requirement | Judicial Authority/Basis |
|---|---|---|
| Filing Competence | Complaint through POA is legal if knowledge is asserted. | Supreme Court of India |
| Witness Eligibility | Must have witnessed transaction or possess due knowledge. | Justice A. Badharudeen (2022/2023) |
| Standard for Reversal | Technical errors must cause a “failure of justice” to reverse. | Section 465 CrPC |
| Revision Objections | Incompetence cannot be raised if not challenged earlier. | Justice G. Girish (May 2026) |
Implications for Section 138 litigation strategy
The ruling signal that the High Court is prioritising the substantive resolution of debt disputes over procedural skirmishes. In the case of Kannan v. M/s. Adisiva Enterprises and Anr., the court highlighted that the revision stage is not meant for re-litigating facts or introducing new challenges to a representative’s authority. This aligns with recent trends where even a civil compromise does not bar prosecution, showing a strict approach to Section 138 enforcement.
Practitioners must now ensure that any doubts regarding a complainant’s agent are resolved immediately. If an accused suspects that a POA holder lacks personal knowledge of the transaction, that objection must be raised during the trial or the first appeal. Waiting until the revision stage will likely lead to the objection being dismissed under the “failure of justice” test established by the CrPC.
Frequently Asked Questions
Can a Power of Attorney holder file a Section 138 complaint?
Yes, filing a complaint through a Power of Attorney holder is legal and competent. The representative is allowed to depose and verify the complaint under oath, provided they have knowledge of the transaction or witnessed the events in question.
What happens if the POA holder lacks personal knowledge?
If a POA holder has no knowledge of the transaction and this is established, they cannot be examined as a witness to prove the debt. Previous rulings have shown that if a representative relies purely on records without personal knowledge, the evidence may be deemed insufficient to prove the case.
Can I challenge a representative’s authority after being convicted?
According to the recent Kerala High Court ruling, you cannot challenge the competence of a POA holder at the revision stage if you did not raise that objection during the trial. The court applies Section 465 of the CrPC to ensure convictions are not overturned on late technical grounds.