A power of attorney holder can present a complaint, but prosecution of the complaint should be after permission of the Court as provided under Section 302 of the Code of Criminal Procedure.

1. The order of issue of process for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 is challenged in the present petition on the ground that the complaint is presented by the power of attorney holder and he has stepped into the witness-box and has given sworn statement and on the basis of the averments in the compliant and the sworn statement and the material made available, the learned Magistrate directed issue of process.

2. Having regard to the said facts, the points that arise for my consideration in the present petition are:

1. Whether a power of attorney holder can present a complaint under Section 200 of the Code of Criminal Procedure, 1973?

2. Whether the power of attorney holder can prosecute the criminal Proceedings without permission under Section 302 of the Code of Criminal Procedure?

3. The first point need not detain me long since it is already held by me in the case of Om Shakthi Scheuled Castes and Scheduled Tribes and Minority Credit Co-operative Society Limited v M. Venkatesh (2008(2) Kar. L.J. 486: 2008(1) AIR Kar. R. 311), that a power of attorney holder can present a complaint.

4. As regards the second point in the present proceedings, the learned Counsel for the petitioner has relied upon the judgment in the case of Jimmy Jahangir Madan v Bolly Cariyappa Hindley (deceased) by L.Rs (2005(1) Kar. L.J. 492 (SC) AIR 2005 SC 48: (2004) 12 SCC 509: 2005 Cri. L.J. 112 (SC) 2004 AIR SCW 6248), and he drew my attention to paragraph 10 wherein the Hon’ble Supreme Court has observed as under:

“…..We are of the view that the Trial Court was not justified in allowing the petitions under Section 302 of the Code and the High Court has committed an error in confirming the said order which is liable to be set aside and petition under Section 302 of the Code are fit to be dismissed giving liberty 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 authorise the power of attorney holders to continue the prosecution on their behalf”.

5. In the said case, the original complainant was dead. The legal representatives authorised power of attorney holder to prosecute the proceedings. As such, the power of attorney continued to prosecute the proceedings. An objection was raised stating that without an application under Section 302 of the Code of Criminal Procedure, he cannot prosecute the case, as such, the matter went to Hon’ble Supreme Court and the Supreme Court held that in the said case, the heirs themselves have not filed the applications to continue the prosecution rather the same have been filed by their power of attorney holders and unless such an applications are made by the heirs, the said applications could not be entertained at all. In addition to the same as pointed out earlier it is clearly observed that the legal representatives themselves have not made applications under Section 302 seeking permission to prosecute the case and if they so desire to appoint the power of attorney holder, they should make an application seeking permission under Section 302 of the Code to appoint the power of attorney holder to prosecute the case.

6. Per contra, it is the argument of the learned Counsel for the respondent that when once permission is granted to the legal representatives of the complainant authorising him to prosecute the proceedings and permitting them to be represented by power of attorney, that would be the end of the matter and there is no necessity for obtaining such a permission again by the power of attorney holder.

7. The learned Counsel for the petitioner has also relied upon the judgment in the case of Janki Vashdeo Bhojwani and Another v Indusind Bank Limited and Others (AIR 2005 SC 439: (2005)2 SCC 217: 2004 AIR SCW 7064), and contended that the power of attorney holder would not have any personal knowledge of the matter and therefore he can neither depose