1. This order shall govern the disposal of aforesaid two MCrC under section 482 of Criminal Procedure Code because the same legal point (complaint under section 138 of Negotiable Instruments Act was signed by non-applicant advocate on basis of memo of appearance duly signed by non-applicants) is involved in both the cases. Learned JMFC Jabalpur in RT No.29/2003 and 193/2002, dismissed the objection raised by applicant on the ground of maintainability.

2. These complaints under section 138 of Negotiable Instruments Act, 1881 (hereinafter referred as to "Act 1881") was filed by respondents with the signature of his advocate Shri Surendra Verma. Applicants filed an application for quashing the complaint on the ground that these complaints have been filed without the signature of the complainant and they are signed by their advocate on the basis of memo of appearance.

As the learned Magistrate in impugned order dated 12.12.2005 has held that he has already taken cognizance therefore he cannot go behind orders. Feeling aggrieved these petitions under section 482 of Criminal Procedure Code are filed before this Court.

3. The only disputed question before me is that what will be the fate of such complaint which has been signed and presented by a complainant advocate instead of complainant.

4. Learned counsel for the applicant Shri J.K. Verma argued that these complaints were filed before JMFC with the signature of respondent complainants advocate and while these complaints were filed even complainant in person was not present before the Court and they appeared before Court for the first time when their statements under section 200 was recorded. These complaints are hopelessly time barred as well as not signed by the complainants hence the impugned order regarding taking cognizance under section 204 passed by Court below be quashed.

5. Shri Surendra Verma, learned counsel for the respondents-complainants drew my attention that there is no particular format of a complaint. A complaint presented to the Magistrate containing allegation that an offence has been committed and ending with a prayer that culprit be suitably dealt with is a complaint. He further argued that complaint can be made orally as provided in definition of complaint in Criminal Procedure Code, 1973 section 2 (d). However, learned advocate of respondents requested that he is willing to cure the defect, if any.

6. Both the advocates were heard at length.

7. In view of the above arguments it will be proper to reproduce section 2( d) of Criminal Procedure Code, 1973, about definition of

complaint:

'''complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."

8. He was duly engaged in both the cases and memo of appearance was signed by non-applicant.

9. However, further section 142 (a) of the Act, 1881 reads as under:

"Section 142( a) : 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."

10. Thus, it is clear that the complaint under section 138 of the Act~ 1881 should be in writing. Further it is settled position that power 0 attorney of payee or a holder in due course can file complaint. {Relied on S.P. Sampathy v. Manju Gupta [2002 CrLJ 2621]. If a power of attorney holder can file a complaint on behalf of complainant so counsel can also act on behalf of his client. If this capacity is not recognized, it will cause inconvenience and loss to the parties as well as delay the progress of proceedings in Court. It is no where held that complaint shall be filed with signature of the complainant. According to section 142, the complaint should be in writing and legislature did not emphasis that such complaint should be also signed by the complaina