CHANDRASHEKHARAPPA Vs. SHARANABASAPPA

JUDGEMENT

(1.) THE order of issue of process for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 is challenged in the present petition on the ground that the complaint is presented by the power of attorney holder and he has stepped into the witness-box and has given sworn statement and on the basis of the averments in the compliant and the sworn statement and the material made available, the learned Magistrate directed issue of process.

(2.) HAVING regard to the said facts, the points that arise for my consideration in the present petition are:

(3.) IN the said case, the original complainant was dead. The legal representatives authorised power of attorney holder to prosecute the proceedings. As such, the power of attorney continued to prosecute the proceedings. An objection was raised stating that without an application under Section 302 of the Code of Criminal Procedure, he cannot prosecute the case, as such, the matter went to Honble Supreme Court and the Supreme Court held that in the said case, the heirs themselves have not filed the applications to continue the prosecution rather the same have been filed by their power of attorney holders and unless such an applications are made by the heirs, the said applications could not be entertained at all. IN addition to the same as pointed out earlier it is clearly observed that the legal representatives themselves have not made applications under Section 302 seeking permission to prosecute the case and if they so desire to appoint the power of attorney holder, they should make an application seeking permission under Section 302 of the Code to appoint the power of attorney holder to prosecute the case.