R.K.BAG,J. - (1.) This criminal revision is preferred by the petitioner challenging the order dated 07.04.2014 passed by the Learned Metropolitan Magistrate, 15th Court, Calcutta in Case No. C/2990 of 2001 under Section 138 of the Negotiable Instruments Act, 1881, by which learned Magistrate refused to accept the evidence of one particular witness on behalf of the complainant.
(2.) It appears from the materials on record that the petitioner being complainant started criminal proceeding against the opposite party under Section 138 of the Negotiable Instruments Act, 1881 before the court of learned Magistrate on 21.06.2001. This petition of complaint was filed by one Sri Aditya Dhanania as the authorised representative of the complainant company before the court of learned Magistrate and he was examined under section 200 of the Code of Criminal Procedure for the purpose of issuing process against the accused person. Subsequently on 30.04.2007 learned Magistrate granted permission to one Sumit Seksaria to represent the complainant company by stepping into the shoes of Aditya Dhanania. Sumit Seksaria filed the affidavit as the complainant before the court of learned Magistrate under Section 145 of the Negotiable Instruments Act, 1881 and he was cross -examined by the defence. Thereafter, one application was filed on behalf of the complainant before the court of learned Magistrate for acceptance of evidence of Aditya Dhanania as P. W. 2 by way of affidavit under Section 145 of the Negotiable Instruments Act and the same was refused by learned Magistrate on the ground that P. W. 1 Sumit Seksaria being substituted in place of Aditya Dhanania as the authorised representative of the complainant company has already adduced evidence and as such the evidence of Aditya Dhanania cannot be accepted by the court.
(3.) With the above factual matrix, Mr. Ayan Bhattacharjee, learned counsel appearing on behalf of the petitioner submits that there is no bar under the law to adduce any evidence in support of the evidence of the complainant to establish the case made out by the complainant in the petition of complaint. Mr. Bhattacharjee contends that Aditya Dhanania was examined as authorised representative of the complainant company under section 200 of the Code of Criminal Procedure, but subsequently Sumit Seksaria stepped into the shoes of Aditya Dhanania as authorised representative of the complainant company and as such Sumit Seksaria gave evidence as P. W. 1 by way of affidavit under Section 145 of the Negotiable Instruments Act, but Aditya Dhanania cannot be debarred from adducing evidence as P. W. 2 in support of the case made out by complainant. Mr. Bhattacharjee has relied on the decision of "Shankar Finance And Investments v. State Of Andhra Pradesh And Others" reported in (2008) 8 SCC 536 wherein it is laid down by the Apex Court in Paragraph 16 as follows:- "In regard to business transaction of companies, partnerships or proprietary concerns, many a time the authorised agent or attorney holder may be the only person having personal knowledge of the particular transaction; and if the authorised agent or attorney holder has signed the complaint, it will be absurd to say that he should be examined under Section 200 of the Code, and only the secretary of the company or the partner of the firm or the proprietor of a concern, who did have personal knowledge of the transaction, should be examined. Of course, where the cheque is drawn in the name of the proprietor of a proprietary concern, but an employee of such concern (who is an attorney holder) has knowledge of the transaction, the payee as complainant and the employee who has knowledge of the transaction, may both have to be examined." By relying on the above decision Mr. Bhattacharjee submits that Aditya Dhanania who was initially examined under section 200 of the Code of Criminal Procedure can very well give evidence as P. W. 2 before the trial court in support of the case made out by the complainant and the defence will be prejudiced thereby, as the defence will get ample opportunity to cross-examine this witness.;