This application is made under section 482 of the Code of Criminal Procedure, seeking quashing of criminal complaint No.(259 of 207) R.T.C. No.260 of 2007 pending before the Chief Judicial Magistrate, Ahmednagar.

2.The facts leading to the complaint, mentioned in the complaint are as under:-

The applicant is a businessman whereas respondent no.1 is National Bank of Oman registered at Oman under the Oman laws having registered Office and Head office at Oman. This bank has no branch in India and has no business activity in India. The applicant is an Indian national. In 1995, he was residing at Abu-Dhabi. He opened an account in the Respondent no.1-bank and sought certain loan. He sought various types of credit facilities in March, 1998. These facilities were renewed from time to time till 2001, however the applicant failed to pay the dues of the bank. The Bank and the applicant then entered into a reconstructing settlement agreement in November, 2002, by converting all the outstanding liability into a term loan. The applicant agreed to repay the loan in 48 instalments and issued post dated cheques for 24 monthly instalments. The applicant however, surreptitiously absconded from UAE and came to India, without repaying the amount. The bank alleged that the applicant never intended to repay the loan and thus, cheated the bank. The bank appointed one N.B. Sapkal as it's attorney for the purpose of filing of the complaint and for taking of legal steps against the applicant. Accordingly the attorney filed complaint. The attorney's statement was recorded by the learned Chief Judicial Magistrate and he then issued process against the applicant. The learned Chief Judicial Magistrate held that in view of the judgments of the Supreme Court in the case of Ajay Agrawal v. Union of India and others 1993 Cri.L.J. 2516, prior sanction under section 188 of the Code of Criminal Procedure is not a condition precedent for taking cognizance of an offence of this kind (allegedly committed by the Indian national outside the country). As said above this order and the complaint is challenged in this application.

3.Shri V.D. Sapkal learned Advocate appearing for the applicant challenged this order on three counts. First, he said the Attorney appointed by the complainant bank could not have recorded his statement on oath, as he had no personal knowledge of the facts of the case. On the basis of such verified statement, learned Chief Judicial Magistrate could not have issued process. Second, Section 188 of the Code of Criminal Procedure requires prior sanction of the Central Government before cognizance of such complaint can be taken. In this case since such sanction is admittedly not taken, the learned Chief Judicial Magistrate erred in taking cognizance of the case. Third, no offence is prima facie seen in this complaint; it is civil dispute about which the respondent bank has already taken steps against the applicant and filing of this criminal complaint amounted to harassment.

Mr. Sapkal asserted that apparently the Attorney of the complainant had no concern with the events that took place at Abu Dhabi where the alleged offence had occurred and therefore, he could not have stated on oath as to what had happened there, to constitute offence. What is stated by the Attorney thus, was only hearsay and on the basis of such statement on oath the learned Chief Judicial Magistrate could not have issued process. He further placed reliance on following judgments, to highlight the proposition that Attorney is not able to depose in place of and instead of the principal:-

(1) Janki Vashdeo Bhojwani and anr. V. Indusind Bank Ltd. and others AIR 2005 SC 439)

(2) Dr. Pradeep Mohanbay V. Mr. Minguel Carlos Dias 2000 Vol. 102 (1) Bom.L.R. 908.

4.There is no difficulty in accepting the proposition that a holder of power of attorney cannot depose in place and instead of the principal. The provisions of rule 1 and 2 of Order 3 of the Code of Civil Procedure, emp