1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2644 OF 2008 ICICI Bank Limited Applicant versus The State of Maharashtra and others Respondents Ms.Revati Mohite-Dere for applicant. Mr.A.P.Mundargi, Sr.Counsel a/w Rahul Moghe and Ms.Sheetal Shah i/by M/s.Mehta & Girdharlal for respondents 2, 3 and 4. CORAM : A.S.OKA, J. DATE : 12th June 2009 JUDGEMENT : 1. The submissions of the learned counsel for the parties were heard on the last date. By this application under section 482 of the Code of Criminal Procedure, 1973 the applicant has taken an exception to order dated 01st April 2008 passed by the learned Metropolitan Magistrate. It will be necessary to refer to the facts of the case in brief. The applicant filed a complaint against second to fourth respondents alleging commission of offence under section 138 read with section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the said Act of 1881”). The complaint was 2 filed by the applicant through its authorized representative Ms.Kalpana Agarwal who was the Manager. Process was issued on the said complaint. During pendency of the complaint an application was made by the applicant for substitution of the said authorized representative and the said application was allowed. There was another application for substitution filed by the applicant which came to be allowed and one Ms.Anuja Deshmukh was allowed to be substituted as an authorized representative of the applicant. 2. An application was filed on 10th September 2007 by the applicant praying that one Mr.Tushar Patel may be substituted as an authorized representative of the complainant instead of and in place of Ms.Anuja Deshmukh. In the said application the applicant averred that on 6th July 2007 the applicant issued power of attorney dated 6th July 2007 in favour of M/s.Kotak Mahindra Bank Limited by which the said bank through its officers was appointed as attorney to do all acts, deeds etc. in the said complaint as well as proceedings arising therefrom. It was stated that the said Kotak Mahindra Bank Ltd. by passing a resolution has authorized Mr.Tushar Patel to represent the applicant in the said complaint. The said application was opposed by the accused. The objection raised was that the applicant bank has not disclosed in the complaint the alleged assignment executed in favour of Kotak Mahindra Bank Ltd.. It was contended that the Kotak 3 Mahindra Bank Ltd. by passing a resolution could not have substituted the authorized representative appointed by the applicant. It is contended that the Kotak Mahindra Bank Ltd. has nothing to do with the transaction subject matter of the complaint. It was submitted that what the Kotak Mahindra Bank Ltd. could not have done directly was sought to be done indirectly by making an application for substitution. By the impugned order the said application was rejected. Rejection was on the ground that the Kotak Mahindra Bank Ltd. was not a party and Mr.Tushar Patel was sought to be substituted as an authorized representative of the Kotak Manihdra Bank Ltd. and not of the applicant. The learned Judge held that there was no connection between the person who was sought to be substituted by the applicant bank and the said applicant bank. The learned Judge held that the applicant will have to first appoint the Kotak Mahindra Bank Ltd. as its representative and thereafter the Kotak Mahindra Bank Ltd. will come in picture and the said bank can appoint its authorized representative to represent the complainant. 3. The learned counsel appearing for the applicant has taken me through the documents on record. Her submission is that the Kotak Mahindra Bank Ltd; on the basis of power of attorney dated 6th July 2007, was entitled to appoint an authorized representative for representing the applicant in the pending complaint. It is submitted 4 that the learned Magistrate has not at all considered the relevant clauses in the power of attorney and the said application ought to have been allowed. The learned Senior Counsel appearing for the original accused has raised various contentions. He submitted that the learned Magistrate has himself stated that after appointment of the Kotak Mahindra Bank Ltd. as a representative, the said bank can appoint the representative who is sought to be substituted. He invited my attention to the special leave petition pending in the Apex Court in which the accused have made an application for intervention. He submitted that the issue whether there could be assignment by the applicant and whether a complaint under section 138 of the said Act of 1881 can proceed after such assignment are to be decided by the Apex Court. He submitted that no interference was called for. 4. I have considered the submissions. There cannot be a dispute that the applicant being a company under the Companies Act is required to be represented in the complaint by its authorized representative. There cannot be any dispute that the applicant is entitled to appoint it’s authorized representative and is entitled to substitute the authorized representative by making necessary application before the Trial Court. The power of attorney executed by the applicant in favour of the Kotak Mahindra Bank Ltd. has been produced on record. Along with the power of attorney executed in 5 favour of Kotak Mahindra Bank Ltd., a resolution passed by the Board of Directors of Kotak Mahindra Bank Ltd. appointing said Tushar Patel as person authorized to represent the applicant bank (ICICI Bank) has been placed on record. The said resolution states that the power of attorney dated 6th July 2007 executed by the applicant in favour of the Kotak Mahindra Bank Ltd. authorizes the said bank to represent the applicant bank in the criminal complaint subject matter of this application and in terms of the authority granted by the power of attorney, persons named in the resolution were being authorized to represent the applicant bank in the pending complaints under section 138 of the said Act of 1881. 5. All that was prayed for by the applicant was substitution of its earlier authorized representative. The question whether the authorized representative who was proposed to be substituted could have deposed on behalf of the applicant in regard to the transaction subject matter of the complaint is a different aspect which can be naturally agitated at appropriate stage of the proceedings. By permitting substitution of the authorized representative there cannot be any adjudication over the rights and liabilities of the parties. Some one has to represent the applicant bank. By allowing substitution as prayed, the defences of the accused are not affected. It must be noted here that a criminal application for quashing the complaint was 6 filed by the accused in this Court and the said application has been dismissed by keeping all contentions of the parties on merits expressly open. 6. In the circumstances, the learned Magistrate has committed an error by rejecting the application made by the applicant and the said application ought to have been allowed. As stated earlier, by allowing the application for substitution, it is obvious that the rights and liabilities of the parties are not adjudicated upon and all contentions on merits of rival parties in the complaint remain open. 7. Hence, I pass following order :- (a) Subject to what is observed above, the criminal application is allowed in terms of prayer clause (a); (b) All contentions of parties on merits are expressly kept open. (A.S.OKA, J.)