@JUDGMENTTAG-ORDER
A.N. Venugopal Gowda, J.@mdashPetitioner along with two others is facing prosecution in C.C. No. 4891/2008 on the file of XIII Addl. CMM, Bengaluru, at the behest of the respondent, for an offence punishable under S. 138 of the Negotiable Instruments Act, 1881 (for short, ''the Act''). After completion of the trial and at the fag end of the proceedings, the complainant having filed an application under S. 91 read with S. 311 of Cr.P.C., despite the objections raised by the accused, having been allowed on 11.04.2011 and thereby, the complainant having been permitted to produce the documents through a power of attorney holder by examining the power of attorney holder, the petitioner filed Crl. R.P. 162/2011. The said petition having been dismissed by the Presiding Officer of FTC-IV, Bengaluru on 08.09.2011, this petition was filed under S. 482 Cr.P.C., to quash the said orders.
2. Learned advocate for the petitioner contended that the application having been filed at a highly belated stage i.e., when the case was at the stage of hearing arguments, the learned Magistrate has committed error in allowing the application, that too, for the purpose of producing documents through a power of attorney holder and examining the power of attorney holder. He submitted that despite the error being pointed out, the Sessions Judge has committed error, by dismissing the revision petition. Learned counsel submitted that, if the impugned orders are allowed to operate, will result in serious miscarriage of justice.
3. There is no appearance for the respondent.
4. Perused the record and considered the submissions.
5. Since the Courts below have found justification to permit the complainant to produce the documents by taking into consideration the given facts and circumstances of the case, I do not find justification to interfere with the impugned orders only to the extent of production of documents. However, the accused should also be granted reasonable opportunity to put forth their case i.e., lead additional evidence, for consideration and decision in accordance with law.
6. The Courts below have committed error in not only permitting the production of documents through power of attorney holder, but also by examining the power of attorney holder. In proof of the complainant''s case, PW-1 having already deposed, there cannot be examination of a power of attorney holder for the purpose of producing and marking of the additional documents. By recalling PW-1, the additional documents produced can be marked and not by independent examination of power of attorney holder, since, in proof of the complainant''s case, PW-1 has already been examined and the documents marked. To the extent of granting permission for examination of power of attorney holder i.e., for the purpose of marking the additional documents produced along with the application, both the Courts below have committed error and illegality. Hence, there is need for interference with the impugned orders.
In the result, petition is allowed in part. Order passed on 08.09.2011 in Crl. R.P. No. 162/2011 by the Presiding Officer, FTC-IV, Bengaluru is set aside. The order passed by the Magistrate on 11.04.2011, is modified. Application filed in C.C. No. 4891/2008 with regard to the permission sought to produce the documents having been allowed, remains undisturbed only to the said extent. The later part of the order i.e., production of the documents and examination of the Power of Attorney Holder is set aside. However, PW-1 be recalled and the additional documents marked by granting opportunity to the accused to lead additional/rebuttal evidence.
The case being pending for more than six years, the court below is directed to decide the same with as much expedition as is possible and at any event, within a period of three months from the next hearing date.
