( 1. ) BEING aggrieved of the order dated 25. 5. 2004 passed by learned Addl. Sessions Judge, Kukshi, District Dhar in Cr. Revision No. 38/2004 wherein the learned revisional Court maintained the order of the Trial Court dated 21. 1.

2004 passed in Criminal Case No. 169/2003, the petitioner has filed Misc. Criminal Case No. 2972/2004 and against the order dated 8. 9. 2004 passed by learned XV Addl. Sessions Judge, Indore, in Criminal Revision No. 564/2004, wherein the learned revisional Court maintained the order of the Trial Court dated 16. 8. 2004 passed in Criminal Case No. 1742/2002, the petitioner has preferred Misc. Criminal Case No. 4198/2004.

( 2. ) SINCE common questions arc involved in both the petitions, the same are taken up together and dispose of by this common order.

( 3. ) IN both the above mentioned petitions under Section 482 of Criminal Procedure Code filed by the petitioner/accused, the core question for decision is whether the criminal complaint can be filed for the offence under Section 138 of the Negotiable Instruments Act (hereinafter shall be referred to as "the Act") by general or special power of attorney holder of the complainant and whether the examination of power of attorney holder of complainant on oath satisfies the requirements of Section 200 of the Criminal Procedure Code.

( 4. ) THE respondent/complainant filed a complaint before the Trial Court through their power of attorney holder for an offence punishable under Section 138 of the Act under the signature of the power of attorney hold. After taking cognizance, the power of attorney holder was examined upon oath by the learned Magistrate and thereafter processes were issued. On appearance, the respondent herein in both the petitions, submitted an objection before the Trial Court that in view of Section 142 of the Act, complaint filed by the complainant through power of attorney holder, that too without the signature of the complainant on it, was not at all proper and that recording of sworn statement of general power of attorney holder cannot be taken as examining the complainant on oath by learned Magistrate envisaged under Section 200 of Criminal Procedure Code. The learned Magistrates in both the cases, after hearing rival contentions, dismissed the objection against which the petitioners/ accused persons went up in revision and revisional Courts have also dismissed the revision, upholding the orders passed by Magistrates in both the cases.

( 5. ) IN Misc. Criminal Case No. 2972/2004, the complaint was filed by general power of attorney holder named Ranapratap Gupta on behalf of complainant, his son Armstrong. Power of attorney holder has also examined himself under Section 200 of Criminal Procedure Code and thereafter the learned Magistrate issued process against the petitioner Mahendra Kumar.

( 6. ) IN Misc. Criminal Case No. 4198/2004, criminal complaint under Section 138 of the Act has been filed on behalf of the complainant Jayesh Shah by his special power of attorney holder Lokendrasingh Tomar. He has also examined himself under Section 200 of Criminal Procedure Code and thereafter the learned Magistrate issued process against petitioner/accused Dipesh Shrivastava.

( 7. ) THE learned Counsel for petitioners/accused persons, relying on Supreme Court judgment passed in case of Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. I (2005) BC 399 (SC) : 2004 AIR SCW 7064, has submitted that a general or special 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 has also placed reliance on an unreported judgment passed by this Court in Ramesh v, Smt. Laxmi Devi and Others, Misc. Criminal Case No. 2161/2003 dated 27. 11. 2003 wherein it is held that in view of the provisions of Powers of Attorney Act, complaint can be presented by the holder of power of attorney but for the purposes of further prosecution, the examination of the complainant as a w