Judgment :- This application is made under section 482 of the Code of Criminal Procedure, seeking quashing of criminal complaint No.(259 of 207) R.T.C. No.260 of 2007 pending before the Chief Judicial Magistrate, Ahmednagar. 2.The facts leading to the complaint, mentioned in the complaint are as under:- The applicant is a businessman whereas respondent no.1 is National Bank of Oman registered at Oman under the Oman laws having registered Office and Head office at Oman. This bank has no branch in India and has no business activity in India. The applicant is an Indian national. In 1995, he was residing at Abu-Dhabi. He opened an account in the Respondent no.1-bank and sought certain loan. He sought various types of credit facilities in March, 1998. These facilities were renewed from time to time till 2001, however the applicant failed to pay the dues of the bank. The Bank and the applicant then entered into a reconstructing settlement agreement in November, 2002, by converting all the outstanding liability into a term loan. The applicant agreed to repay the loan in 48 instalments and issued post dated cheques for 24 monthly instalments. The applicant however, surreptitiously absconded from UAE and came to India, without repaying the amount. The bank alleged that the applicant never intended to repay the loan and thus, cheated the bank. The bank appointed one N.B. Sapkal as it's attorney for the purpose of filing of the complaint and for taking of legal steps against the applicant. Accordingly the attorney filed complaint. The attorney's statement was recorded by the learned Chief Judicial Magistrate and he then issued process against the applicant. The learned Chief Judicial Magistrate held that in view of the judgments of the Supreme Court in the case of Ajay Agrawal v. Union of India and others 1993 Cri.L.J. 2516, prior sanction under section 188 of the Code of Criminal Procedure is not a condition precedent for taking cognizance of an offence of this kind (allegedly committed by the Indian national outside the country). As said above this order and the complaint is challenged in this application. 3.Shri V.D. Sapkal learned Advocate appearing for the applicant challenged this order on three counts. First, he said the Attorney appointed by the complainant bank could not have recorded his statement on oath, as he had no personal knowledge of the facts of the case. As said above this order and the complaint is challenged in this application. 3.Shri V.D. Sapkal learned Advocate appearing for the applicant challenged this order on three counts. First, he said the Attorney appointed by the complainant bank could not have recorded his statement on oath, as he had no personal knowledge of the facts of the case. On the basis of such verified statement, learned Chief Judicial Magistrate could not have issued process. Second, Section 188 of the Code of Criminal Procedure requires prior sanction of the Central Government before cognizance of such complaint can be taken. In this case since such sanction is admittedly not taken, the learned Chief Judicial Magistrate erred in taking cognizance of the case. Third, no offence is prima facie seen in this complaint; it is civil dispute about which the respondent bank has already taken steps against the applicant and filing of this criminal complaint amounted to harassment. Mr. Sapkal asserted that apparently the Attorney of the complainant had no concern with the events that took place at Abu Dhabi where the alleged offence had occurred and therefore, he could not have stated on oath as to what had happened there, to constitute offence. What is stated by the Attorney thus, was only hearsay and on the basis of such statement on oath the learned Chief Judicial Magistrate could not have issued process. He further placed reliance on following judgments, to highlight the proposition that Attorney is not able to depose in place of and instead of the principal:- (1) Janki Vashdeo Bhojwani and anr. V. Indusind Bank Ltd. and others AIR 2005 SC 439 ) (2) Dr. Pradeep Mohanbay V. Mr. Minguel Carlos Dias 2000 Vol. 102 (1) Bom.L.R. 908. 4.There is no difficulty in accepting the proposition that a holder of power of attorney cannot depose in place and instead of the principal. The provisions of rule 1 and 2 of Order 3 of the Code of Civil Procedure, empowers the attorney to act on behalf of the principal but such acts confine only in respect of the acts done by the attorney in exercise of the power granted to him, but such acts would not include the deposing in place and instead of the principal. Similarly the Attorney cannot depose for the principal in respect of the matter which only the principal has personal knowledge of. Similarly the Attorney cannot depose for the principal in respect of the matter which only the principal has personal knowledge of. But unfortunately this proposition is not useful for the present case. In the present case, the attorney of the bank simply stated that he learnt about the facts from the record of the bank which the bank had supplied to him and on the basis of such record, he would make complaint. Submitting the complaint to the Magistrate and setting the law in motion is not impermissible for a person who is not personally conversant with the facts of the case. The provisions of section 200 of the Code of Criminal Procedure in proper perspective makes this clear. Section 200 CrPC reads as under:- "Section 200 - Examination of complainant-A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) If a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the later Magistrate need not re-examine them." The section does not make it necessary that to set the criminal law in motion, the complainant must be an eye witness to the incident. This section makes it obligatory for the Magistrate taking cognizance of the offence, to record the statement of the complainant on oath. The object of examination of the complainant on oath is only to find out whether the complaint is justifiable or whether it is frivolous or vexatious. This is a stage where the Magistrate has to find out, whether the complaint makes out a case for issuance of process. This is not a stage where the accused is able to intervene and cross-examine the complainant. The statement which the Magistrate records at this stage cannot be said to be substantial evidence against the accused. This is a stage where the Magistrate has to find out, whether the complaint makes out a case for issuance of process. This is not a stage where the accused is able to intervene and cross-examine the complainant. The statement which the Magistrate records at this stage cannot be said to be substantial evidence against the accused. The scheme of the Code of Criminal Procedure, requires the Magistrate to record evidence in support of the complainant at appropriate stage. The accused would have an opportunity to cross-examine the complainant as well as the witnesses. The question as to whether the complainant has personal knowledge, of the facts mentioned in the complaint would hardly arise. The reliance on the Supreme Court judgment mentioned above is thus, incorrect. The judgment of our High Court of Justice R.K. Batta in the case of Dr. Pradeep Mohanbay (cited supra), in fact would go against the submission of Shri Sapkal. In that case, learned Single Judge of this Court, was examining as to whether, the complaint under section 138 of the Negotiable Instruments Act could be filed by an Attorney even in the stringent rule of section 142 of the Negotiable Instruments Act and whether the Attorney could give evidence on behalf of the complainant. The learned Single Judge, considered various case-laws on this point. He held firstly that in view of the judgments of the Supreme Court in case of Ravulua Subbarao v. Commissioner of Income Tax, Madras AIR 1956 SC 604 and taking into consideration the provisions of Indian Contract Act, 1872 the law is the same in respect of right to appoint an agent for any purpose whatsoever and it is recognised as a common law right. Such right is subject to well known exception such as when the act to be performed is personal in character or that the act to be performed is annexed to a public office or to an office involving fiduciary obligation. But apart from such exception the law is well settled that whatever a person can do himself, he can do through an Agent. The learned Single Judge then held that applying the underlying principal in criminal law, it is well settled that any person can set the criminal law in motion and as such a complaint regarding an offence, can be filed by any person who knows about the commission of offence. The learned Single Judge then held that applying the underlying principal in criminal law, it is well settled that any person can set the criminal law in motion and as such a complaint regarding an offence, can be filed by any person who knows about the commission of offence. Thus despite the rule laid down in section 142 of the Negotiable Instruments Act, that no cognizance of the offence under section 138 of the said Act should be taken except on a complaint of the payee or holder in due course, it does not contemplate that the complaint should be personally filed by the complainant. The complainant can appoint a power of attorney for filing the complaint. The present complaint is not a complaint for offence under section 138 of the Negotiable Instruments Act. So, the attorney of the complainant bank is certainly entitled to file the complaint, record his verified statement and to set the law in motion. 5.In this case there is no dispute between the parties that the acts constituting the alleged offence were committed outside the territorial limits of our country. 6.In order to appreciate the second point which is based on section 188 CrPC, one has to first read the relevant provisions of law. 5.In this case there is no dispute between the parties that the acts constituting the alleged offence were committed outside the territorial limits of our country. 6.In order to appreciate the second point which is based on section 188 CrPC, one has to first read the relevant provisions of law. Section 2, 3 and 4 of the Indian Penal Code and section 188 of the Code of Criminal Procedure read as under:- "Section 2 IPC- Punishment of offences committed within India- Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India." "Section 3 IPC- Punishment of offences committed beyond, but which by law may be tried within India - Any person liable, by any Indian law, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India." "Section 4 IPC- Extension of Code to extra-territorial offences- The provisions of this Code apply also to any offence committed by - (1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be, Explanation- In this section the word "offence" includes every act committed outside India which, if committed in India, would be punishable under this Code." "Section 188 CrPC- Offence committed outside India - When an offence is committed outside India (a) by a citizen of India, whether on the high seas or elsewhere; or (b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found: Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government." 7.Section 2, thus makes even a foreigner who commits an offence within India liable and can be punished as such without any limitation as to his corporal presence in India at the time. Section 3 and 4 make a person liable to be tried for an offence committed beyond India as if such act has been committed in India. Section 2, 3 and 4 of the Indian Penal Code are the substantive provisions whereas section 188 of the Code of Criminal Procedure is the procedural rule, pursuant to the provisions of sections 3 and 4. 8.Shri Sapkal asserted that the proviso to section 188 CrPC opens with a non-obstante clause and so the learned Magistrate could not have enquired into the complaint except with the previous sanction of the Central Government. On the other hand Shri P.M. Shah learned senior counsel appearing for the respondent no.1 bank, asserted that the procedure aspect of the rule is not mandatory and that the bank can obtain sanction in time, during the pendency of the case. He placed reliance on judgment of Supreme Court in the case of Ajay Agrawal v. Union of India and others 1993 Cr.L.J. 2516. The point before the Supreme Court in that case was whether the prosecution of the appellant under section 120(B) r/w. 420, 471 of the Indian Penal Code was bad in the absence of sanction under section 188 of the Criminal Procedure. The Supreme Court held that sanction under section 188 CrPC was not a condition precedent to take cognizance of the offence. If need be it could be obtained before trial begins. But I think this was held in the facts and circumstances of the case before the Supreme Court. In the case before the Supreme Court, it was alleged that the offence of conspiracy was initially hatched at Chandigarh. Though the conspiracy in itself is completed offence, but it being a continuing offence, part of the conspiracy and overt act in furtherance thereof took place at Dubai and partly at Chandigarh. In consequence other offences were committed including the offence of cheating of the Punjab National Bank at Chandigarh. The Supreme Court held that since the offences were committed during the continuing course of transaction the need to obtain sanction for various offences, under proviso to section 188 CrPC is obviated but the Supreme Court also said in paragraph no.27 as under:- "27. ............ The case may be different if the offences were committed outside India and are completed in themselves without conspiracy. ............ The case may be different if the offences were committed outside India and are completed in themselves without conspiracy. Perhaps that question may be different for which we express no opinion on the facts of this case. The ratio in Fakhrulla Khan : (AIR 1935 Madras 326) has no application to the facts in this case. Therein the accused were charged for offences under S. 420, 419, 467 and 468 and the offences were committed in native State, Mysore. As a result the courts in British India i.e. Madras Province had no jurisdiction to try the offence without prior sanction. Equally in Verghese's case (AIR 1947 Madras 352) the offences charged under section 409, IPC had also been taken place outside British India. Therefore, it was held that the sanction under section 188 was necessary." 9.The Supreme Court in this judgment, did not disturb the ratio of cases of Fakhrulla Khan and Varghese. In case of Fakhrulla Khan and Varghese the offences were committed outside India, the offences were completed in themselves without conspiracy and so, it was held that prior sanction under section 188 Cr.P.C. was necessary before cognizance could be taken. In this judgment the Supreme Court also held that since the proviso to section 188 Cr.P.C. begins with non-obstante clause it's observance is mandatory but it would only come into play if the principal clause is applicable namely that the offence has been committed and it is committed outside the country. I am of the view that the judgment of Ajay Agrawal's case is not applicable to the facts of this case. I hold that the order of the learned Chief Judicial Magistrate was incorrect, when he held that in view of the judgment in Ajay Agrawal's case the complainant-respondent bank did not need prior sanction for initiating the prosecution. It is thus clear that on one hand the respondent bank could not have lodged the complaint, without obtaining prior sanction of the Central Government on the other hand in the absence of such sanction, if the complaint is lodged the learned Chief Judicial Magistrate could not have issued process. So the application deserves to be partly allowed. The order of issuance of process is set aside. So the application deserves to be partly allowed. The order of issuance of process is set aside. The respondent bank is given liberty to obtain sanction of the Central Government as required under section 188 of the Code of Criminal Procedure and then seek fresh order of process against the applicant. 10.I am not inclined to discuss the third point raised by Shri Sapkal. He made a submission that the complaint does not amount to offence and the dispute between the parties is of civil nature. I think this point should be kept open for the parties to agitate after the sanction for the prosecution is obtained.