DALIP SINGH, J. - (1.) HEARD learned counsel for the petitioner.
(2.) THIS petition has been filed by the accused petitioner challenging the order by which cognizance was taken for the offence under Sec. 138 of the Negotiable Instruments Act, 1881 by the learned Magistrate on the complaint filed by the non-petitioner No. 2. Learned Magistrate dismissed the application vide order dated 28.7.2004. The petitioner preferred a revision petition which too was dismissed by the learned revisional Court vide order dated 20.12.2005. Hence, this petition. In the present petition under Sec. 482 CrPC the petitioner has challenged the order passed by the learned Magistrate taking cognizance for the offence under Sec. 138 of the Negotiable Instruments Act, 1881 against the petitioner primarily on the ground that the complaint filed by the non-petitioner No. 2 was filed by the power of attorney holder. In the complaint, the complainant has been described as follows : "Smt. Champa Godha wife of Shri Vinay Kumar Godha, by caste Jain, resident of 152, Sarawgi Mansion, M.I. Road, Jaipur through power of attorney holder Ramavtar Jain son of Brij Mohan Jain."
(3.) THE objection which has been raised is that under the provisions of Sec. 138 read with Sec. 142 of the Negotiable Instruments Act, 1881, the complaint was required to be filed by the complainant herself and the power of attorney holder has no right to file the complaint. In view of the above fact that complaint in the instant case was filed by the power of attorney holder, the cognizance based upon the said complaint could not be taken. The Courts below have held that there is no bar under the provisions of Sec. 138 or under Sec. 142 of the Negotiable Instruments Act, 1881 on account of which the complaint could not have been filed by the power of attorney holder.;