( 1 ) THOUGH there are 8 matters, the substantial matters are Criminal Misc. Applications no. 1798 of 1997 to 1801 of 1997. They are the petition filed under Section 482 of Criminal Procedure Code praying for quashing of 4 different criminal cases of Chief Judicial Magistrate, Baroda. All the four cases are under Section 138 of the negotiable Instruments Act, 1881 (hereinafter referred to as the "said Act" ). The remaining 4 applications are filed in the respective main applications praying for recalling the order of issuance of Rule passed by the learned single Judge The rule issued in all the four matters is being finally heard. It is obvious that those applications praying for review or recall of the order do not survive.

( 2 ) COMING back to the main petitions no. 1798 of 1997 to 1801 of 1997, the common question argued in all the four matters is that the complaint filed before the Chief Judicial Magistarate being the one lodged by the power of attorney-holder of the payee, is not maintainable as per the provisions of Section 142 of the said Act.

( 3 ) IT is an admitted postion that the cheque was issued in favour of Surjit mukesh Rawal. The complaint is filed by the power of attorney-holder Mukeshkumar yuvrajsing Yadav. Section 142 (a) pertaining to the aforesaid question is as under:"notwithstanding anything contained in the Code of Civil Procedure, 1973 (2 of 1974),- (a) "company" no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b ). . . . . . . As noted above, the contention raised on behalf of the accused-petitioners is that section 142 contemplates filing of a complaint in writing made by the payee or the holder. The complaint having been lodged by the power of attorney, who is obviously neither a payee, nor the owner, is not maintainable. Under the general criminal law, it is an accepted principle that any one can set the criminal law in motion. The moment it is set in motion so far as the. procedure is concerned, it will be governed by the Code of Criminal Procedure, 1973 (hereinafter referred to as the "said Code" ). In the said Code itself there are exceptions made in form of Sections 195 to 199 fixing the eligibility criteria for the Court to take cognizance of a given complaint. The aforesaid requirement of Section 142 of the said act, therefore, will fall into the same category. In other words, it is an exception to the said general Rule that criminal law can be set into motion by anyone. This can be said to be the common law principle. To the extent if there is an exception to the said common law principle, the Court taking cognizance has to satisfy itself as to the eligibility criteria.

( 4 ) COPY of the complaint filed along with the application reveals from the cause title that Surjit Mukesh Yadav is shown to be the complainant and describing himself to be the power of attorney of said Surjit mukesh Yadav, Mukeshkumar has filed the complaint. No doubt, in the body of the complaint all throughout, he uses the word complainant without referring to a donor of the power of attorney or making any distinction as to his own capacity as that of a donee of the power.

( 5 ) AT the bar, decisions were cited indicating that a complaint can be lodged by a power of attorney-holder. This is naturally the endeavour on the part of the complainant-respondent. As against that, the endeavour on the part of the applicant- accused is that when a statute creates an embargo, the condition must be strictly interpreted and especially when that very statute creates a right before it could be exercised, the person claiming to exercise the right must be compelled to act according to the requirement of the statute. At appropriate places the decisions will be considered.

( 6 ) THE law as to negotiable instruments to the extent to which stands codified in the said act is origin