The main legal point established in the judgment is that the holder of power of attorney can file a complaint under Section 138 of the Negotiable Instruments Act and can be examined in place of the complainant if he has personal knowledge of the transaction.

Oral Judgment:

1. These applications, by complainants in complaints for offence punishable under Section 138 of the Negotiable Instruments Act, seeking leave to file appeal against judgments of acquittal rendered by Judicial Magistrates First Class in Criminal Case Nos. 833 of 2005 (new) 1988/2004(old) and 3321/2007 raise a common question and are, therefore, taken up for disposal by a common judgment.

2. Criminal Case No. 1988/2004 i.e. New No.833/2005 had been filed by the payee through holder of her power of attorney one Kamalkishore, whereas Criminal Case No.3321/2007 had been filed by Sk. Salam who was grandson and holder of power of attorney of Halimabee payee of the cheque.

3. Theholders of Power of Attorney in both the cases tendered evidence on behalf of the complainants. After considering the evidence tendered, in light of judgment of learned single Judge of this Court in Roy Joseph Vs. Sk. Tamisuddin, reported at (2008(3) Mh.L.J. 708), the learned Magistrates proceeded to acquit both the accused. Aggrieved thereby the complainants have sought leave to file appeal by these two applications.

4. It was pointed out that there was a contrary judgment of another learned single Judge of this Court in Mamtadevi P. Bhansali Vs. Pushpadevi K. Agrawal, reported at (2005 ALL MR (Cri) 3075). In view of this, leave granted.

5. Both the appeals are, therefore, ADMITTED and by consent taken up for final hearing.

6. Both these appeals raise a small question of law, as to whether the complaint for the offence punishable under Section 138 of the Negotiable Instruments Act can be filed by holder of power of attorney.

7. I have heard learned counsel for the parties. None appeared for Respondent No.1 in Cri. Appeal No.496 of 2008, though served through paper publication.

8. In Roy Joseph Vs. Sk. Tamisuddin, reported at (2008(3) Mh.L.J. 708) a complaint was originally shown to have been filed for and on behalf of one Sayarabee, who was payee. Sayarabee had not herself signed the complaint or verified it. The accused, therefore, sought to have the complaint dismissed. The learned Single Judge considered the requirements of law in this regard and observed in paragraph 11 as under:

“11. .... The statutory provisions requires, therefore, that the complaint must be signed by the complainant and that it shall be verified by the complainant. In the other words, a complaint which is not signed by the complainant, is, therefore, incomplete and on the basis of such incomplete complaint, no cognizance can be taken under section 142 of the Negotiable Instruments Act. As stated before, verification of the complainant is essential in order to ensure that in future nobody may be allowed to deny liability arising out of frivolous complaint, false charges, malicious prosecution or like unfounded criminal action. Corollary of the foregoing discussion is that for the purpose of a valid complaint the test is to examine whether identity of the person, who would be liable to pay compensation to the accused persons, may be under section 357 of the Criminal Procedure Code or may be under the tortious liability, is clearly set out in the complaint. Looked from this angle, the complaint filed by the special power of attorney does not show that he accepted any liability for such adverse effects on the complaint being found frivolous or vexatious.......”

9. In paragraph 14 the learned Judge considered another judgment of this Court in Dr. Pradeep Mohanbay Vs. Mr. Minguel Carlos Dias, reported at (2000 Vol.102(1) Bom.L.R. 908) and in paragraph 15 observed as under:

“15. There is no difficulty in accepting the proposition that a Power of Attorney may enter witness box in his own capacity so as to spell out the facts known to him. In no case, however, he can substitute himself in place of the complainant right from the stage of verification of the complaint till end of the trial. In other words, the original complainant cannot be a mere name lender wh