2005 (2) TMI 902 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of filing a criminal complaint under Section 138 of the Negotiable Instruments Act by a power of attorney holder.
2. Whether the examination of the power of attorney holder on oath satisfies the requirements of Section 200 of the Criminal Procedure Code (CrPC).

Detailed Analysis:

1. Validity of Filing a Complaint by Power of Attorney Holder:
The core question addressed is whether a criminal complaint under Section 138 of the Negotiable Instruments Act can be filed by a general or special power of attorney holder of the complainant. The court examined the validity of complaints filed by power of attorney holders in two cases. In both instances, the complaints were filed by power of attorney holders, who also examined themselves under Section 200 of CrPC, leading to the issuance of processes by the Magistrate.

The court noted that under the Negotiable Instruments Act, there is no specific provision authorizing a complainant to file a complaint through an authorized agent or attorney. However, Section 2 of the Powers of Attorney Act allows for such representation. The court referenced the Supreme Court judgment in Janki Vashdeo Bhojwani, which held that a power of attorney holder can appear, plead, and act on behalf of the party but cannot become a witness on behalf of the party.

2. Examination of Power of Attorney Holder on Oath:
The court analyzed whether the examination of a power of attorney holder on oath satisfies the requirements of Section 200 of CrPC. It was argued that the complaint filed by a power of attorney holder without the complainant's signature and the recording of the power of attorney holder's sworn statement did not meet the legal requirements. The court referred to divergent views from various High Courts and ultimately upheld the Supreme Court's stance in Janki Vashdeo Bhojwani, which clarified that a power of attorney holder cannot appear as a witness on behalf of the complainant.

The court concluded that while the filing of complaints by power of attorney holders is valid, their examination as witnesses in the capacity of the complainant is not permissible. The complainant must be examined personally, and if unable to appear, can request examination on commission.

Conclusion:
The court dismissed both petitions, affirming that the complaints filed by power of attorney holders were valid, but the examination of the attorney as a witness in the capacity of the complainant was not permissible. The complainant must personally testify, and the testimony of the power of attorney holder can only be considered for the purposes of registration of the complaint and issuance of process under Section 204 of CrPC. The court emphasized that the original complainant cannot be substituted by the power of attorney holder for further prosecution.