IMPORTANT POINT
Verification of the complaint under Section 202, Cr.P.C. is necessary.

V.R. Kingaokar, J. —This is an application filed by the original accused. They challenged legality and correctness of orders passed by learned Judicial Magistrate, First Class, Aurangabad and learned IVth Additional Sessions Judge, Aurangabad in S.C.C. 2888/2001 and Criminal Revision Petition No. 76/2003. They seek quashing of the orders of issuing process and denying discharge from the criminal case.

2. The applicants allege that the proceedings of Criminal Case (S.C.C. No. 2888/2001) are liable to be quashed inasmuch as the same amounts to abuse of process of law.

3. Background facts may be summarised as follows:

The respondent No.1 Sk. Tamisuddin claims himself to be Special Power of Attorney of deceased Sairabi. He alleges that on 20.6.2001 the applicant issued a cheque for amount of Rs.1,00,000 (Rupees one lac) towards part payment of agreed amount payable to Sairabi for her share in an immovable property. The cheque was presented for encashment in the concerned Bank. However, it was dishonoured. A demand notice was issued by the respondent No.1 which drew blank. He therefore, lodged the complaint before the learned Judicial Magistrate, First Class, Aurangabad, on 8.8.2001. The learned Magistrate issued process on 18.8.2001 on the basis of verified statement of the respondent No.1 Sk. Tamisuddin.

4. The applicants filed an application (Ex. 41) to acquit them under Section 256 of the Cr. P.C. for the reason that in the month of June, 2002, aggrieved person, namely, Sairabi dismissed. Thereupon, the respondent No.1 filed an application (Ex. 43) seeking permission to grant leave to continue the complaint proceedings in his capacity as legal representative of the deceased Sairabi i.e. original complainant.

5. The applicants filed yet another application for recalling the process on the ground that the complaint filed by the respondent No.1 for and on behalf of said Sairabi was untenable. They asserted that the respondent No.1 had no locus standi to file such complaint nor process could be issued on the basis of his verified statement. They asserted that the complaint filed on behalf of the deceased Sairabi ought to have been signed by herself and she ought to have verified correctness of the contents. Therefore, they urged to dismiss the complaint.

6. By a common order dated 12.3.2003 the learned Magistrate rejected both the applications filed by the applicants. The applicants preferred a Revision Petition (Cr. Rev. No. 76/2003) which came to be dismissed.

7. Mr. Jondhale, learned advocate for the applicants, would submit that the complaint for offence under Section 138 of the N.I. Act could not be filed by the respondent No.1 in the name of deceased Sairabi. He argued that verification of the complaint by the respondent No.1 is totally illegal inasmuch as the respondent No.1 is not the holder of cheque in due course. He argued that the respondent No.1 had no legal authority to file the complaint under his own signature. It is argued that issuance of the process without recording verified statement of original complainant Sairabi is illegal liable to be set aside. It is contended that the Power of Attorney holder cannot substitute himself as a complaint. It is argued that the impugned orders deserve to be set aside inasmuch as the complaint proceedings are totally illegal. Per contra, Mr. P.R. Patil, learned advocate for the respondent No.1 and learned APP support the impugned orders.

8. A perusal of the complaint reveals that the complaint was filed in name of deceased Smt. Sairabi whose age was shown as 72 years at that time, and it was presented through Special Power of Attorney, namely, Sk. Tamisuddin. The complaint purports to show that Sk. Tamisuddin is well conversant with the facts of the complaint. He claimed to be authorised person to file the complaint by virtue of the Special Power of Attorney executed by said Smt. Sairabi. The complaint reveals that Smt. Sairabi had interest in a property which the app