[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL W.P.NO.1242 OF 2007 Mr.Gajanan S.Pawar ..Petitioner Vs. Dilip Z.Choudhari and Anr. ..Respondents ... Mr.Sandesh S.Patil Advocate for Petitioner Ms.A.T.Zaveri A.P.P. for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : FEBRUARY 18, 2008 DATE : FEBRUARY 18, 2008 DATE : FEBRUARY 18, 2008 P.C. P.C. P.C. 1. Heard. 2. The Petitioner is facing prosecution in a case under Section 138 of Negotiable Instruments Act. The said case is bearing Criminal Case No.1881/2000 which is pending before the learned Judicial Magistrate F.C., 8th Court, Thane. 3. In the said case, evidence was led by the power of attorney holder of the original complainant. The petitioner-accused took objection to the evidence led by the power of attorney holder. It is his case that the power of attorney holder could [-2-] not depose on behalf of the complainant, hence, the original complainant be directed to depose in person. In the present case, it is seen that the power of attorney holder has filed his affidavit of examination in chief at Exhibit-18. He has filed copy of "General Power of Attorney" at Exhibit-24/1. The said Power of Attorney is dated 15.8.1998. The disputed cheque was allegedly given by the accused to the original complainant on 10.7.2000. It appears that the said transaction took place after the execution of Power of Attorney by the original complainant in favour of present Power of Attorney Holder. Moreover, Power of Attorney Holder of the complainant has specifically stated that he has knowledge of the facts of the present case. Whether he was a witness to the alleged transaction or not, can be determined after his evidence is led. At this stage, it prima facie appears that he is a Power of Attorney of the original complainant since 15.8.1998 and he had knowledge of facts of the present case. In the case of Mamla Devi Prafullakuma Bhansali Vs. Mamla Devi Prafullakuma Bhansali Vs. Mamla Devi Prafullakuma Bhansali Vs. Pushpadevi Kailashkumar Agarwal Pushpadevi Kailashkumar Agarwal Pushpadevi Kailashkumar Agarwal reported in 2005(2) 2005(2) 2005(2) Mh.L.J. 1003, Mh.L.J. 1003, Mh.L.J. 1003, it has been held that "if the transactions are witnessed by the power of attorney [-3-] himself as agent of the payee such power of attorney alone can be a witness and his being a power of attorney cannot disentitle him from being a witness." In view of the above decision, the learned Magistrate has held that the present Power of Attorney Holder cannot be disentitled to lead his evidence. The learned Magistrate further observed that the evidenciary value of the evidence of Power of Attorney Holder can be determined at the stage of final arguments. Looking to the facts of this case, this view taken by the learned Magistrate cannot be said to be erroneous. Hence, no interference is called for. Hence, Writ Petition is rejected. [SMT.V.K.TAHILRAMANI, J.]