ASHIM KUMAR ROY, J. - (1.) IN the instant criminal revisional application the petitioner sought for quashing of a proceeding in connection with the Case No. C-186 of 2004 pending before the learned First Judicial Magistrate, Alipore, 24-Parganas (South) relating to the offences punishable under Section 138 of the Negotiable Instruments Act as well as the order dated May 23, 2007 passed in connection therewith.
(2.) THE petitioner challenged the said proceedings on twofold grounds : Firstly, in terms of the provisions of Section 302(2) of the Code of Criminal Procedure no previous permission of the Court to conduct the prosecution on behalf of the complainant has been obtained by her constituted attorney and. Secondly, the provisions of Section 145 of the Negotiable Instruments Act only permits that the evidence of the complainant alone can be given on affidavit and by none-else. Mr. Bhaskar Sen, Senior Advocate appearing on behalf of the petitioner submitted before this Court that in the instant case, although Prakash Kumar Mohata in the capacity of the constituted attorney .of the complainant Manjushree Singhi made the complaint in the Court but no permission in terms of provisions of Section 302 of the Code of Criminal Procedure was obtained by the complainant before institution of the case. In this connection Mr. Sen relied on a decision of the Apex Court in the case of Jimmy Jahangir Madan v. Bolly Cariyappa Hindley, (2004) 12 SCC 509 and submitted in a case where the complainant has not filed any petition under Section 302 of the Code of Criminal Procedure to continue the prosecution by his power of attorney holder nor any permission was sought for by .them from the Court at the very inception in that regards, the complainant should not be allowed to continue the prosecution through his power of attorney holder. It is the further submission of Mr. Sen that provisions of Section 145 of the Negotiable Instruments Act only permits the evidence of the complainant be given on affidavit and not by anyone else. On the other hand, Mr. Sekhar Basu, the learned advocate strongly refuted the contention of Mr. Sen and submitted both the grounds on which the submission of Mr. Sen rests, are totally misconceived and not tenable in law. Mr. Basu further submitted that already the second ground on which the petitioner prays for quashing of this case has been considered and rejected by this Court in C.R.R. No. 613 of 2005 in connection with the self-same proceedings.
(3.) I have given my anxious consideration to the rival submissions of the parties. The principle of law as laid down in the case of Jimmy Jahangir Madan v. Bolly Cariyappa Hindfey (supra) has no manner of application in the facts and circumstances of this case. That was a case where in connection with a proceedings under Section 138 of the Negotiable Instruments Act, after the death of the complainant, the payee, her legal heirs, son and daughter, by General Power of Attorney authorized and empowered two others to continue the prosecution and in terms thereof they moved an application under Section 302 of the Code of Criminal Procedure. The question arose for decision in the said case whether the power of attorney holder can file such an application, when no such application was filed by the legal heir of the complainant. However, the issue involves in the instant case is completely different and the facts, and circumstances of the aforesaid case is completely distinguishable from that of the present one. The Section 302 of the Code of Criminal Procedure only provides as to who be permitted to conduct the prosecution and not the locus standi of any person to make a complaint in Court. To prosecute any accused in a Court of law by filing a complaint representing the complainant and to conduct the prosecution on behalf of the complainant before a Court of law are completely distinct and different matter, as such for filing a complaint in the name of the complainant on his behalf by any duly authorized person no permission is required as it requires in terms of Section 302 of the Code of Criminal Procedure for conducting any prosecution. A legal representative of the complainant is equally competent as that of the complainant himself, to prosecute an accused in a case relating to an offence punishable under Section 138 of the Negotiable Instruments Act and it would be always lawful for a Court to take cognizance of such offence on a complaint made to it by the power of attorney holder of the payee. In the instant case, the complaints relating to an offence punishable under Section 138 of the Negotiable Instruments Act being made to the Court by one Prakash Kumar Mohata, the constituted attorney of the payee Manjushree Singhi being duly authorized and empowered by her to file the said complaint and such complaint being in the name of the complainant and on her behalf the requirements of law have been fully satisfied and thus there is no legal impediment on the Court to take cognizance thereupon and to proceed with the case. Thus, the order of taking cognizance of the offence and continuation of the instant proceedings on tile basis thereupon is wholly lawful and does not warrant any interference by this Court. Moreover, in C.R.R. No. 613 of 2005 this Court has already upheld the order of taking cognizance.;