TMI Blog2005 (2) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned petitions under Section 482 of Criminal Procedure Code filed by the petitioner/accused, the core question for decision is whether the criminal complaint can be filed for the offence under Section 138 of the Negotiable Instruments Act (hereinafter shall be referred to as the Act ) by general or special power of attorney holder of the complainant and whether the examination of power of attorney holder of complainant on oath satisfies the requirements of Section 200 of the Criminal Procedure Code. The respondent/complainant filed a complaint before the Trial Court through their power of attorney holder for an offence punishable under Section 138 of the Act under the signature of the power of attorney hold. After taking cognizance, the power of attorney holder was examined upon oath by the learned Magistrate and thereafter processes were issued. On appearance, the respondent herein in both the petitions, submitted an objection before the Trial Court that in view of Section 142 of the Act, complaint filed by the complainant through power of attorney holder, that too without the signature of the complainant on it, was not at all proper and that recording of sworn statement of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the following judgments: (1) Judgments rendered by Single Judge of this High Court, Bench at Gwalior in cases of Dr. Anil Kumar Haritwal v. Sant Prakash I (2002)BC 113 : 2001(2) MPLJ 488; (2) Smt. Shanti Devi Agrawal v. V.H. Lulla 2003(4) MPLJ 138; (3) KM. Maregowda v. Seven Hills Ex.-Import Corporation, Bangalore 2004 Cri.LJ. 4119, Karnataka High Court. Having heard the learned Counsel for parties and after perusing the impugned orders as well as the judgments relied upon by the Counsel for parties, this Court is of the view that in Negotiable Instruments Act, there is no special or separate provision authorising the complainant to file a complaint by his authorised agent or attorney and allow the attorney or agent to enter into grace the box to lead evidence on his behalf. In Code of Civil Procedure Rule 2 of Order 3 provides the recognized agent of the parties by whom such appearances, applications and acts may be made or done. The persons holding power of attorney authorising them to make and do such appearances, applications and acts or behalf of such party. In case of Janki Vashdeo Bhojwani (supra), the Supreme Court, after considering the divergent views of the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e view taken by the Rajasthan High Court in the case of Shambhu DuttShastri (supra) followed and reiterated in the case of Ram Prasad (supra) is the correct view. The view taken in the case of Floriano Armando Luis (supra) cannot be said to have laid down a correct law and is accordingly overruled. The Supreme Court in case of Janki Vashdeo Bhojwani (supra) has finally set at rest the controversy about filing of the complaint or plaint and examination of the holder of power of attorney as witness and ruled that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear as a witness is altogether a different act. A general power of attorney holder or special power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff/complainant in the capacity of plaintiff/complainant. Section 118 of the Evidence Act, is a provision giving power to the Court to examine a person as witness. According to this section, all persons shall be competent to testify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e holder of power of attorney has appeared as a witness, his testimony can be considered for the purposes of registration of the complaint/issuances of process under Section 204 of Criminal Procedure Code but for further proceeding, examination of the complainant would be must and if the complainant is a juristic person, then on his behalf, the managing partner/working partner if it is a partnership firm and if it is a company or any other juristic person than the person authorised in this behalf would be competent to enter into witness box. For the purposes of issuing process and trying the case under Section 138 of the Act, as per provision under Section 145 of the Act, the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any inquiry, trial or other proceeding under the said Code. Sub-section (2) further envisages that the Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. The provision under Section 145 of the Act shows that whole evidence can be adduced by filing aff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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