A power of attorney duly authorized by the payee can file a complaint on behalf of the principal.

(Petition filed under Section 482 Cr.P.C. praying to call for the records pertaining to S.T.C.No.3069 of 2004 on the file of the Judicial Magistrate No.III, Madurai and quash the same.)

The petitioner/accused has filed this petition challenging the order of the Judicial Magistrate No.III, Madurai in taking cognizance of the complaint filed by the respondent/complainant in S.T.C.No.3069 of 2004 on his file.

2. The respondent preferred the complaint through the power of attorney before the Judicial Magistrate under Section 138 r/w. 142 of Negotiable Instruments Act against the petitioner herein and after examining the power of attorney under Section 200 Cr.P.C., learned Judicial Magistrate had taken cognizance of the case. The petitioner has challenged the said cognizance of the case on various grounds and emphasised inter alia among other grounds that the Judicial Magistrate erred in examining the power of attorney of the complainant for the purpose of taking cognizance of the matter on his file.

3. While the matter came up for admission, Mr.A.G.Senthil Kumar, learned counsel for the petitioner has advanced his arguments.

4. According to the learned counsel for the petitioner, the impugned complaint filed by the power of attorney ought not have been taken on file for the reason that the power of attorney is neither a payee nor a holder in due course as contemplated under Section 142(a) of the Negotiable Instruments Act. In this context, he has referred me the decisions rendered by Hon'ble Supreme Court in JANKI VASHDEO BHOJWANI v. INDUSIND BANK LIMITED (AIR 2004 S.C.W. 7064), and contended on the basis of the ratio laid down therein that the proceedings impugned herein has to be quashed as the power of attorney can only appear, plead and act on behalf of the party, but he cannot become witness on behalf of the party and therefore he has urged that on this solitary point alone the impugned proceedings is liable to be quashed.

5. In this circumstance, it is necessary to extract the relevant principle laid down in the said decision so as to dispose of this petition and the same runs as follows: -

"On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri V. State Of Rajasthan (1986 2WLL 713), it was held that a general power of attorney holder can appear, plead and act on behalf of the party, but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.

The aforesaid judgment was quoted with the approval in the case of RAM PRASAD v. HARI NARAIN AND OTHERS (AIR 1998 RAJ. 185). It was held that the word "acts" used in Rule 2 of Order III of the C.P.C. does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the Court, a commission for recording his evidence may be issued under the relevant provisions of the C.P.C."

6. Relying upon the said dictum of law referred supra, learned counsel for the petitioner would contend further that since the power of attorney in this case had given sworn statement before learned Judicial Magistrate so as to enable the Court to take cognizance of the matter and inasmuch as he had no authority to give evidence on behalf of his principal, the impugned proceedings in taking cognizance of the case is not valid in law.

7. In this regard, it is essential to extract Section 142(a) of the Negotiable Instruments Act which reads as follo