M/S Aparna Communication Links ... vs Rajshree Agencies Thr. Its ...
2022 Latest Caselaw 13068 Bom

Judgment                                   1               1.wp.532.2022 judg.odt




      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                NAGPUR BENCH, NAGPUR.

           CRIMINAL WRIT PETITION NO.532 OF 2022

      M/s. Aparna Communication Links,
      Through its Proprietor & Authorised
      Signatory

     1. Sau Aparna Rajesh Dengre,
      Aged : 54 Yrs., Occ.: Business,

     2. Rajesh Jugalkishore Dengre,
      Aged : 55 Yrs., Occ.: Business,

      Both R/o. Inside Jawahar Gate,
      Behind Rampyari Temple,
      Near Vaidya Gaurasa Amravati,
      Distt. Amravati- 444601                           .... PETITIONER

                                  // VERSUS //

     Rajshree Agencies,
     Through its Proprietor,
     Chetan S/o. Brijkishore Chandak,
     Aged about 47 Yrs., Occ.: Business,
     Office at: Kachipura,
     New Ramdaspeth, Nagpur 440010
     Acting through its Power of Attorney
     Holder, Ganesh Subhash Shripate,
     Aged about 45 Yrs., Occ.:Service,
     R/o. Hiltop Colony, Amravati Road,
     Dawalameti, Nagpur                   .... RESPONDENT
__________________________________________________________
      Mr A. S. Dhore, Advocate for the petitioner
      Mr S. G. Karmarkar, Advocate for the respondent
__________________________________________________________

                     CORAM : G. A. SANAP, J.

DATED : 15th DECEMBER, 2022 Judgment 2 1.wp.532.2022 judg.odt

ORAL JUDGMENT :

1]          Heard.



2]          RULE. Rule made returnable forthwith. Heard finally

by consent of learned Advocate for the parties.

3] By this writ petition, the petitioner/accused has

challenged the order dated 08.07.2022, passed by the learned

Judicial Magistrate First Class, Nagpur, whereby the learned

Magistrate rejected the objection raised by the petitioner/accused to

the maintainability of the affidavit of respondent/complainant and

granted permission to the respondent/complainant to examine

himself, after leading the evidence of his constituted attorney.

4] It is submitted that the power of attorney holder has

deposed about the facts stated in the complaint. The power of

attorney holder has specifically stated that he was concerned with

the day to day affairs and business transaction of the proprietary

concern. The transaction, which is part of the contract, according Judgment 3 1.wp.532.2022 judg.odt

to the power of attorney holder was within his personal knowledge.

After completion of evidence of power of attorney holder, the

learned Magistrate granted permission to the respondent/

complainant to examine himself. The petitioner/ accused raised the

objection for the same. Learned Magistrate overruled the

objection.

5] It is the principal contention of the petitioner/accused

that the leave of the Court was not sought at the stage of the

examination of the power of attorney holder, to examine the

respondent/complainant later on. Learned Advocate submitted

that since the proceeding under Section 138 of the Negotiable

Instruments Act, 1881 is quasi civil proceeding, the same would be

governed by provision of Order XVIII Rule 3-A of the Code of

Civil Procedure. It is pointed out that order of examination has

been provided under Order XVIII Rule 3-A of the Code of Civil

Procedure.

 Judgment                           4                 1.wp.532.2022 judg.odt




6]          At the stage of hearing of this petition, the learned

Advocate for the respondent/complainant pointed out that the

complainant was sought to be examined to prove the notice dated

28.08.2021 received by the respondent/complainant from the

petitioner/accused after completion of evidence of power of

attorney holder. Learned Advocate submitted that this notice can

be proved by examining other witnesses. Even for that purpose he

may make an application, before the learned Judicial Magistrate

First Class, Nagpur, to recall the power of attorney holder and to

lead his evidence to this limited extent. It is undisputed that this

notice was received by the respondent/complainant after filing of

affidavit of examination-in-chief of the power of attorney holder.

Learned Advocate, therefore, submits that if such liberty is granted

then subject to that liberty the order may be quashed and set aside

and it be left open to the parties to take recourse to the appropriate

remedy.

7] In view of this position, the writ petition is allowed.

The order passed by the learned Magistrate dated 08.07.2022 is Judgment 5 1.wp.532.2022 judg.odt

quashed and set aside. The liberty is granted to the respondent/

complainant to examine other witness to prove the notice. Further

liberty is granted to the respondent/complainant to make an

application under Section 311 of the Code of Criminal Procedure

before the learned Magistrate to recall the power of attorney holder

to prove the said notice. If such an application is made before the

learned Magistrate for recalling the power of attorney holder, same

be considered liberally in accordance with law.

8] The writ petition stands disposed of, accordingly. Rule

made absolute in the above terms.

( G. A. SANAP, J.)

Namrata

Signed By:NAMRATA YOGESH DHARKAR P. A.

High Court Nagpur Signing Date:15.12.2022 17:48