Mahendra Kumar vs Gangamma B
Though, matter is listed for admission, with consent of learned counsel appearing for parties, it is taken up for final disposal.
2. Heard Sri A.P.Pulakeshi, learned counsel appearing for petitioner and Sri Vishnumurthy, learned counsel appearing for respondent and perused records.
3. Petitioner who is the complainant in CC.No.32891/2014 had filed a complaint under Section 200 of Cr.P.C against respondent for alleged offence punishable under Section 138 of Negotiable Instrument Act sought for tendering his evidence through power of attorney. A memo/application dated 30.5.2015 - Annexure - 'C' came to be filed by the petitioner seeking permission of trail Court to prosecute the case through special power of attorney. Said application was resisted to by the respondent/accused by filing objections and trial Court after considering the rival contentions, by order dated 6.4.2016 allowed the said memo/application and permitted the applicant to prosecute the case through special power of attorney. Being aggrieved by said order, respondent herein / accused filed Crl.RP.No.400/2016 before the LXVI Addl. City Civil and Sessions Judge, Bangalore City. Said revision petition came to be allowed by order dated 01.04.2017 and order dated 6.4.2016 by the trial Court came to be set aside on the ground that complainant ought to have filed an application under Section 302 of Cr.P.C., and said application had not been filed and memo/application filed was not duly signed by the complainant.
4. Though, said ground may be too typer-technical, it would suffice, if liberty is granted to the petitioner to file application under Section 302 of Cr.P.C., before trial Court seeking leave to prosecute the complainant through special power of attorney. In the event, such being application trial court would be at liberty to consider the same on merits and in accordance with law. No opinion is expressed in that regard. Accordingly, petition stands disposed of reserving liberty to file application under Section 302 Cr.P.C.
In view of disposal of main petition, I.A.No.1/2017 for stay does not survive for consideration and same is hereby rejected.
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