1 cri appln 3025.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3025 OF 2010 Manoj Subhashchandra Shah .. Applicant Versus 1. Proficon Electronics Manufacturing Co. Ltd. and another .. Respondents Shri D. S. Bharuka, Advocate for the Applicant. Shri P. P. Darak, Advocate for Respondents. CORAM : S. S. SHINDE, J. DATE : 15TH FEBRUARY, 2011. PER COURT : . Heard learned counsel appearing for the applicant and learned counsel appearing for respondents. The counsel for applicant submitted that, mainly on two grounds his complaint is rejected. Firstly, the husband has filed the complainant and who is power of attorney did not file on record the power of attorney. The counsel appearing for the applicant submitted that, the ground on which the complaint is rejected is that the power of attorney has no authority to file the complaint. The counsel 2 cri appln 3025.10 submits that, there is direct judgment on this point. He invited my attention to the judgment of the Hon'ble Supreme Court in case of Sankar Finance Vs. State of Andhra Pradesh reported in 2009(1) D.C.R. 27 (S.C.). The Hon'ble Supreme Court has held that, power of attorney can file the complaint. The counsel further placed reliance on the reported judgment of this Court in case of Vilas B. Sawant Vs. Smt. Mayuri reported in 2010 All MR (Cri) 2998. Therefore, the counsel for the applicant would submit that the ground assigned by the Trial Court that, no power of attorney can file the complaint cannot be sustained in the light of above said pronouncements by the Supreme Court and this Court. The counsel for the applicant further submitted that another ground on which the complaint is dismissed cannot be sustained. According to the learned counsel for the applicant, the cheques were returned by the Bank of Baroda Pune to the H.D.F.C. Bank, Aurangabad on 15.07.2008. However, the applicant received the intimation from H.D.F.C. Bank on 28.07.2008. Therefore, according to the learned counsel for the applicant the notice was issued to the respondents on 18th August, 2008 and thereafter, complaint was filed on 26th September, 2008. Therefore, the counsel would submit that, even the second ground given by the Court to reject the complaint is 3 cri appln 3025.10 not sustainable. The learned counsel for the applicant, therefore, would submit that, this application may be allowed. 2. On the other hand, the learned counsel appearing for the respondents submitted that, when the complaint was filed, there was no authorization in favour of Manoj Shah to file the said complaint. He invited my attention to the title clause of the complaint which was filed before the Judicial Magistrate First Class and on reading the title it does not disclose the name of the proprietor. He further submits that, only by way of filing application U/Sec. 311 additional evidence was brought on record and thereby authorization letter was brought on record. The counsel further submitted that, in the cross examination of the applicant, he has admitted that the letter at Exhibit 46 issued by H. D. F. C. Bank on 28th July, 2008 has no concern with the disputed cheques. Therefore, the counsel for respondents would submit that, this Court may not interfere with the impugned judgment and order. The learned counsel for the applicant in rejoinder submitted that, so far admission of the P.W. 1 in his cross examination is concerned, nine cheques were issued, he stated in respect of remaining five cheques and it was not in respect of four cheques which is the subject matter of the 4 cri appln 3025.10 complaint. 3. Upon hearing the learned counsel of the applicant and learned counsel for the respondent and upon perusal of the judgment cited supra and also fact that, the Bank of Baroda, Pune had returned the cheques to the H. D. F. C. Bank at Aurangabad on 15th July, 2008. Thereafter, on 28th July, 2008 the applicant received the intimation from his bank. Prima facie it appears that, reasoning given by the Court below is not sound. Therefore, in my opinion, the application deserves to be allowed. Hence application seeking leave to file appeal from the judgment and order of Judicial Magistrate First Class, Aurangabad Court No. 6 in S.C.C. No. 7001/2008 dated 10.05.2010 is allowed. The application stands disposed of. The registry is directed to register this application as appeal. 4. On registration of appeal the appeal admit. 5. The learned counsel for respondents waives service of notice after registration of appeal. [ S. S. SHINDE, J.] bsb/Feb. 11