- (1.) THE petitioners were being prosecuted on the complaint of the opposite party no. 2 before the learned Metropolitan Magistrate, 16th Court, Calcutta in Case No. C-5430 of 2003 under Section 138/141 of the N. I. Act. Prosecution Case was closed upon cross-examination of the witnesses on behalf of the complainant and at the stage of examination of the accused under Section 313 Cr. P. C. an application was filed by the complainant for recalling P. W. 1 in order to prove of Power of Attorney on the strength of which he filed the petition of complaint against the petitioners. That application was resisted by the petitioners on the ground that to facilitate re-examination of P. W. 1 in order to have on record a purported Power of Attorney would virtually amount to allowing the complainant to fill up lacuna which the law does not permit and which would be prejudicial to the interest of the accused. It was the contention of the petitioners before the learned trial court as also in this court that the complainant stated that on the basis of a letter of authorization by one Sharat Deorah he lodged the complaint and was accordingly deposing on behalf of the complainant who is M/s. Auro Laboratories Ltd. Learned Trial Court while allowing the petition observed that letter of authorization on the basis of which p. W. 1 had lodged the complaint and was examined was already marked Exbt. 1 and if Power of Attorney to the same effect is proved by P. W. 1 through reexamination it will not be prejudicial to the accused. The Power of Attorney was produced before the learned Magistrate who observed that the document itself showed that it was executed on 12th of September, 2003 on which date the letter of authorization was also executed. Thus, according to the learned Magistrate the Power of Attorney was the document that came into existence before the lodgment of the case; as such the petition was allowed.
(2.) MR. Sandipan Ganguly, learned advocate appearing for the petitioners argued that if according to the complainant letter of authorization was sufficient to enable P. W. 1 to lodge complaint and to examine himself, then the Power of Attorney will not be at all necessary, but Power of Attorney and the letter of authorization which are two distinct documents cannot be said to have been executed by one and the same person and in order to bolster the case or to fill up the lacuna re-examination is sought for by the complainant that will have the effect of causing prejudice to the accused. Mr. Ganguly referred to the following decisions:-Dandy Knit Garments vs. Subiksha Spinners. , 2000 DCR 627 (Mad.), Iqbal Singh vs. State of Punjab, 1999 (4) RCR (Cri) 625 (P and H), Mauji Ram vs. State of Haryana, 1985 (2) RCR (Cri) 176 (P and H), Jitendra Nath Bose vs. The State, 1991 Cri. L. J. 922 (Cal), Nisar Khan @ Guddu and Ors. vs. State of Uttarnchal, (2006) 2 SCC (Cri) 568, R. N. Kakkar vs. Hanif Gafoor Naviwala and Ors. , 1996 Cri. L. J. 365 (Bom.), B. D. Goel vs. Ebrahim Haji Husen Sanghani and Ors, 2001 Cri. L. J. 450 (Bom.), K. Chokka Rao vs. A. Veerabhadra Rao and Anr, 1999 Cri. L. J. 1097 (AP), Judicial Dictionary, 13th Ed : KJ Aiyar, P. 955.
(3.) MS. Sutapa Sanyal, learned advocate appearing for the opposite party no. 2 submitted that unless prejudice is caused, unless proposed re-examination of p. W. 1 is considered absolutely useless, this court must not exercise its inherent jurisdiction to disturb the Magisterial order who in his wisdom chose not to shut evidence which was really necessary. Ms. Sanyal produced before me a copy of the petition praying for recalling P. W. 1 which shows the questions proposed to be put to P. W. 1 by way of re-examination are (i) how P. W. 1 was authorized by the company and (ii) who has authorized him and on what basis? Petition of complaint was filed by the company to be represented by Mahendra Kumar Daga said to be the authorized representative of the company. This is as it appears in the cause title in the petition of complaint. At para 1 of the petition of complaint it has been stated that the complainant is the authorized representative of M/s. Auro Laboratories Ltd. Before the learned Trial Court admittedly a letter of authorization was produced which was marked Exbt. 1. Copy of the letter of authorization has been produced before this court which shows that one Sharat Deorah, the Director of M/s. Auro Laboratories Ltd. authorized Mahendra Kumar Daga to file a case under Section 138 against the petitioners. At the time of the hearing of the petition of recall of P. W. 1 the Power of Attorney was produced before the learned Magistrate, a copy of which is here also and the Power of Attorney reveals that the same person Mr. Sharat Deorah who is one of the Directors of M/s. Auro Laboratories Ltd. was executing the Power of Attorney in favour of Mr. Mahendra Kumar Daga to lodge complaint on behalf of the company. Therefore, the person who issued letter of authorization and the person who executed the Power of Attorney on the same day as 12th of September, 2003 is one and same person and it is not that two different persons have executed two documents in favour of P. W. 1. Mr. Ganguly raised the point that if Mr. Mahendra Kumar Daga was authorized to file complaint by Mr. Sharat Deorah then definitely there has to be a resolution by the Directors to authorize Mr. Mahendra Kumar Daga to file complaint on behalf of the company and Mr. Sharat Deorah who is one of the Directors of the company cannot unilaterally take any action to authorize Mr. Daga to file complaint. Whether Mr. Sharat Deorah was authorized to issue a letter of authorization empowering Mr. Mahendra Kumar Daga to lodge complaint on behalf of the company by any resolution of the Board of Directors or whether Mr. Sharat Deorah was authorized to issue a Power of Attorney on behalf of the company is a matter that can be ventilated when P. W. 1 was proposed to be reexamined through cross-examination. At the present stage it appears prima facie that letter of authorization and Power of Attorney were executed by Mr. Sharat Deorah to empower Mr. Mahendra Kumar Daga to file complaint. When the learned Magistrate in such circumstances allowed the petition I do not think that the order allowing the petition of the complainant to reexamine P. W. 1 so as to have the Power of Attorney exhibited on formal proof this court should be interfered with. Mr. Sanyal went on arguing that letter of authorization which is a nonjudicial stamp of Rs. 50/- is, in fact, the part of the Power of Attorney which was omitted to be placed before the trial court and both the documents were executed by the Director Mr. Sharat Deorah on the same day. I do not find any point that the petitioners will in any way be prejudiced. Decisions cited by Mr. Ganguly are in different fact situations and do not apply here.;