ASHISH SERVICES Vs. STATE AND ORS.

JUDGEMENT

(1.) THIS is a petition under Section 482 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') for setting aside the order dated 6th October, 2012 passed in complaint under Section 138 NI Act, being C.C. No. 7770/2002 titled as M/s. Ashish Services v. Laxmi Petroleum pending in the Court of Ms. Ankita Lal, learned Metropolitan Magistrate, Saket Courts, Delhi whereby application under Section 311 Cr.P.C. moved by the petitioner/complainant was dismissed. The petitioner is a partnership firm which was running a petrol pump at 31/3 Village Behloolpur Khaddar, outer ring road, opposite ISBT Sarai Kale Khan, Delhi in the name of M/s. Ashish Services and deals in petrol and petroleum products. A complaint under Section 138 of Negotiable Instruments Act, 1881 (for short 'NI Act') was filed by the petitioner in the name of partnership firm through its Power of Attorney holder Mr. Rohit Jain with respect to bouncing of cheque amounting to Rs. 14,70,053/ -. Mr. Rohit Jain was duly authorized by the partnership firm vide Special Power of Attorney dated 22nd July, 2008 to file a complaint. During cross -examination of Mr. Rohit Jain it was revealed that due to inadvertence and oversight SPA Ex. CW 1/1 was not notarized. After the cross -examination of the attorney holder the petitioner closed its evidence. Statement of respondent was recorded under Section 313 Cr.P.C. The respondent sought time to lead defence evidence, however, on the next date respondent closed its evidence without leading any defence evidence. The matter was fixed for final arguments. In order to avoid any technical difficulty, petitioner moved an application under Section 311 Cr.P.C. seeking an opportunity for further additional evidence in the form of evidence of Nishi Gupta (one of the partners) with respect to the power of attorney dated 22nd July, 2008 and another special power of attorney dated 5th September, 2011 duly notarized and ratifying the earlier power of attorney.

(2.) THE application was, however, dismissed by learned Metropolitan Magistrate with the observation that the application has been made only to fill lacuna in the prosecution. Feeling aggrieved by the dismissal of the application, a revision was preferred, however, it was submitted that the impugned order being interlocutory order, therefore, same was barred under Section 397(2) Cr.P.C. After seeking liberty to take appropriate remedies, the revision was withdrawn and the present petition has been filed challenging the impugned order inter alia on the ground that the procedural errors can be rectified at any stage. No prejudice would be caused to the respondent if an opportunity is granted to the petitioner to bring on record new power of attorney ratifying the earlier power of attorney. Hence this petition.

(3.) I have heard Mr. M.A. Niyazi, learned counsel for the petitioner.