Bombay High Court
Vilas Ramrao Walakate vs Surekha Suresh Wadkar on 5 September, 2024
2024:BHC-AUG:21588
946-cwp-1261-2024.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1261 OF 2024
Vilas Ramrao Walakate
Age : 53 years, Occu : Business,
R/o : Bhagwan Nagar, Ambejogai Road,
Latur. ..Petitioner
VERSUS
Surekha Suresh Wadkar
Age : 63 years, Occu : Household,
R/o : Near Amba Hanuman Mandir,
Ambejogai Road, Latur. ..Respondent
...
Advocate for the Petitioner : Mr. Bhandari Anand P.
Advocate for Respondent : Ms. Sundale Rakhi Virbhadra
...
CORAM : S.G. MEHARE, J.
DATED : SEPTEMBER 05, 2024
ORAL JUDGMENT :-
1. Rule. Rule made returnable forthwith. Heard finally
with the consent of parties.
2. The petitioner has impugned the orders of the learned
Judicial Magistrate First Class, Latur below Exhibit-171 in STCC
No.2140 of 2018 dated 26.02.2024 and the order of the learned
Additional Sessions Judge, Latur in Criminal Revision Petition No.29
of 2024 dated 06.05.2024.
3. The brief facts of the case were that the respondent had
filed a complaint under Section 138 of the Negotiable Instruments
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Act. The respective parties have led the evidence. The matter was
heard. However, before conclusion of the trial, the
respondent/complainant had filed an application Exhibit-171 to
exhibit Sr. No.15 i.e. the power of attorney which was filed along with
the complaint. The Superintendent of Court had verified the original
power of attorney with xerox copy and original was returned.
Thereafter, the matter went ahead. By application Exhibit-171, the
petitioner/accused raised serious objection that filing the complaint
through the power of attorney is ill-founded, false, frivolous,
vexatious and not maintainable in the eyes of law and hopelessly time
barred. The application does not speak of any provision under which
such application was moved. The complainant is taking opportunity
to fill up the lacunas by avoiding procedure. The verification of the
power of attorney done was neither as per the direction of the Court
nor it reflects that the COC made the said endorsement after
verification of original. Mere production of the power of attorney
would not discharge the complainant or alleged power of attorney. It
was an attempt on the part of the person representing before the
Court to fill up the lacunas raised during advancement of the
arguments by the learned counsel for the accused.
4. The learned Judicial Magistrate considered the
submissions of the respective counsels. He has recorded the stages of
recording the evidence etc. The learned Judicial Magistrate observed
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that nothing has been mentioned in the cross-examination about the
power of attorney was a photocopy or original power of attorney filed
on record. In an evidence affidavit at Exh.23 and the complaint at
Exh.1, it was mentioned that Suresh Siddhlingappa Wadkar has filed
the complaint and the evidence affidavit at Exh.23 on behalf of his
wife namely Smt. Surekha Suresh Wadkar in the capacity of power of
attorney holder. The photocopy of the power of attorney was filed at
the time of institution of the case along with list at Exh. 3. The matter
was conducted by both the parties and the complainant throughout
the case has been represented by the power of attorney holder. The
accused did not raise objection on the capacity of the power of
attorney holder except denial in his cross- examination at Exh.23. It
seems that the power of attorney was not exhibited at the time of
further examination-in-chief of the power of attorney holder at Exh.
23. Admittedly, the original power of attorney is not there on record.
However, its photocopy is filed along with list at Exh. 3 at Serial No.
15. The original complainant and the power of attorney holder both
have filed their affidavits on record stating that the original power of
attorney has been misplaced due to which they cannot produce the
same on record. It has been further observed that considering
circumstances of the present case, the said photocopy at Serial No. 15
which was produced along with list at Exh. 3 is not a new document
brought by the complainant and it is filed at the time of filing of the
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case and it is also mentioned in the complaint as well as evidence
affidavit at Exh. 23.
5. The Revisional Court by the impugned order recorded the
finding that mere exhibiting the document does not mean that its
contents are proved. The exhibition of copy of power of attorney is a
ministerial act and the proceeding cannot be culminated because of
the exhibition of the document. It is well settled that the revision is
not maintainable against interlocutory orders. On this finding, the
petition was dismissed.
6. Learned counsel for the petitioner has vehemently argued
that the petitioner has filed an application below Exhibit-40 raising
objection that the power of attorney should not argue, file
applications as the complainant has duly appointed Advocate Shri
S.G. Padole in the case. However, the learned Magistrate has
incorrectly rejected that application though the orders were not
challenged. He would submit that his endeavour was to show that
the power of attorney was not authorized to lead the matter. He
further argued that the Superintendent has no authorization to verify
the document at the time of filing the complaint. The
respondent/complainant had no case that leave may be granted to
lead the secondary evidence. Therefore, granting an opportunity to
file an affidavit at the fag end of the trial is apparent illegality and
granting an opportunity to fill up the lacunas was affecting the
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accused. Both impugned orders have caused great injustice to the
petitioner. It is a case under Section 138 of the Negotiable
Instruments Act in which many presumptions run against the accused.
So, whatever he brings from the material on record and the evidence
led by the complainant, is one of the sources to rebut the
presumption. Both Courts had gone to the wrong way of considering
an application and erroneously rejected the application.
7. Per contra, learned counsel for the respondent would
submit that the Civil Manual is applied to the case. She has referred
to Chapter-27 clause 521 of the Civil Manual that provides that the
original document may be verified at the time of filing of the petition.
The documents verified by the Superintendent or the person
authorized by the Court original need not be produced where the
power of attorney has been verified by the officer authorized by the
Court unless the Court directs.
8. The evidence was led by the power of attorney for the
complainant. He was cross-examined at length. However, mistakenly
it was not exhibited. The said documents was on the record since the
day of filing the complaint. At no point of time, the objection was
raised. The petitioner at no point of time asked the Court to direct
the complainant to produce the original. In the meantime, the
original was lost. It has been clarified by way of an affidavit. The
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respondent is running after the petitioner since 2018 for money for
which she was legally entitled.
9. The Superintendent of Court has authority to verify the
photocopy of the original and return the original. So, it could not be
said that the power of attorney was a new document. The power of
attorney holder had led the evidence for and on behalf of the
complainant and he has specifically deposed to that effect. He was
cross-examined. However, when the matter was heard, some
mistakes were discovered that document was not exhibited, which
was an authenticated verified document. The genuineness of that
power of attorney was not in question. The only question raised was
that the xerox copy cannot be exhibited. It was not a mere xerox
copy. It was a document verified by the authorized officer. So, it has
the authentication.
10. Considering the facts of the case, the Court is of the view
that the learned Magistrate has considered the facts of the case and
correctly assigned the reasons rejecting the objections and allowing
the application. This Court does not find any substance in the
petition. Hence, the petition stands dismissed. No order as to costs.
11. Rule stands discharged.
(S.G. MEHARE, J.)
Mujaheed//
