Allahabad High Court
M/S Navbharat Food Products And ... vs State Of U.P. And Another on 14 March, 2023
Bench: Sadhna Rani (Thakur)
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 72
Case :- APPLICATION U/S 482 No. - 39888 of 2022
Applicant :- M/S Navbharat Food Products And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Sudhir Kumar Agarwal
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.
Prayer is made to set aside the order dated 8.9.2022 passed by learned Presiding Officer, Additional Court, Jhansi in complaint case no. 5282 of 2020, M/s Ishwar Food Products Vs. M/s Navbharat Food Products and others, under section 138 N.I.Act, police station Kotwali, District Jhansi, whereby the trial court rejected the application of the applicants praying to produce for evidence the sole proprietor of M/s Ishwar Food Products, Smt. Laxmi Devi in the court. This prayer was rejected on the ground that the question whether power of attorney holder of Laxmi Devi, her son Raj Kumar Sahu is authorized to adduce evidence on behalf of Laxmi Devi or not, shall be decided at the time of final judgment. The court further opined that the complainant can not be compelled to adduce the evidence of a particular person in the court. It is up to the complainant to whom she wants to produce as witness in the court, hence, the application of the applicants was rejected.
It is argued by the learned counsel for the applicants that as per power of attorney, power of attorney holder Raj Kumar Sahu, the son of sole proprietor Laxmi Devi was not authorized to adduced evidence. The attention of the court was also drawn towards the judgment, AIR 2005 Supreme Court 439, Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd and others, whereby the Apex Court held that Order III Rules 1 and 2 of C.P.C., empowers the holder of the Power of Attorney to act on behalf of the Principal. The term 'act' would not include deposing in place and instead of the principal. Thus it is argued that Laxmi Devi who is the sole proprietor of M/s Ishwar Food Products has not authorized her son, the power of attorney holder Raj Kumar Sahu to adduce evidence, otherwise also as per order III Rues 1 and 2 of C.P.C. power of attorney holder cannot depose in place and instead of principal, hence prayer is made accordingly.
As per the record, it is not disputed that Laxmi Devi wife of Ramesh Chandra Sahu is sole proprietor of M/s Ishwar Food Products/ opp. Party no. 2. It is also not disputed that she had executed a power of attorney in favour of her son Raj Kumar Sahu mentioning that she is 68 years old lady who is suffering with various ailments and is unable to walk even. On the basis of this power of attorney her son Raj Kumar Sahu had filed a complaint under section 138 N.I. Act in the trial court. It is also not disputed that Raj Kumar Sahu appeared as P.W.-1 in the trial court. The present application has been moved by the present applicants with prayer to produce Smt. Laxmi Devi as a witness because by way of power of attorney, she had not authorized Raj Kumar Sahu to give evidence on her behalf.
Learned A.G.A. opposed the prayer.
If we go through the record, vide power of attorney, the holder of the power of attorney Raj Kumar, the son of sole proprietor Laxmi Devi was not specifically authorized to give evidence on behalf of Laxmi Devi. As per the judgment of the Apex Court, the court has expressed that in the light of Order III Rules 1 and 2 of C.P.C. the holder of power attorney cannot depose in place and instead of principal and here admittedly, P.W.-1 Raj Kumar Sahu is holder of power of attorney and not the principal. Laxmi Devi is the sole proprietor of M/s Ishwar Food Products, hence, on the basis of the provision and the discussions made above, the trial court has committed error in reaching at the conclusion that power of attorney holder Raj Kumar has been authorized by the principal for adducing the evidence or not is to be decided at the time of judgment. As Laxmi Devi is the sole proprietor and Raj Kumar is only the power of attorney holder on her behalf, thus, in the light of Order III Rules 1 and 2 of C.P.C., the applicants have right to summon Laxmi Devi, the sole proprietor of the firm as a witness.
Thus, the order dated 8.9.2022 passed by learned Presiding Officer, Additional Court, Jhansi in complaint case no. 5282 of 2020, M/s Ishwar Food Products Vs. M/s Navbharat Food Products and others, under section 138 N.I.Act, police station Kotwali, District Jhansi is quashed. The trial court is directed to dispose of afresh the application of the applicants accordingly.
The application u/s 482 Cr.P.C. is hereby allowed.
Order Date :- 14.3.2023
Gss
