1. The appellant herein is the original complainant in SCC No.1419 of 2004. The appellant had filed a complaint under Section 138 of the Negotiable Instruments Act against the present respondents. The learned JMFC, Malegaon, had issued process against the accused. The complainant Upendra Lad is the complainant, (1) Santosh Marathe, employee of State Bank of India, (2) Paresh Borker, employee of Bank of India and (3) Ram Jadhav working in Nashik Mahila Vikas Sahakari Bank. The statement of the accused was recorded under Section 313 of Cr.P.C. The accused No.2 examined himself on oath. Hindustan computers is a proprietary concern. The accused had executed the agreements with Upendra Lad. Accused No.2 i.e. Rajesh Hirani filed an application below Exhibit 171 seeking relief of dismissal of complaint on account of the fact that Upendra Lad was not the proprietor of Hindustan Computers. The proprietor was Mrs. Neeta Lad. It was further urged that throughout the proceedings, Upendra Lad had posed himself as the proprietor of the firm of Hindustan Computers. In the verification statement also the complainant i.e. the present appellant has categorically stated that he is the proprietor of the firm. It is stated thus:

“HINDI”

In the examination-in-chief as well as in the cross-examination, Upendra Lad had solemnly stated that he was the proprietor of Hindustan Computers. A separate notice was also issued by Upendra Land as the proprietor. The accused had further demonstrated that the proceedings under Section 138 of Negotiable Instruments Act are necessarily to be filed by the holder in due course or the power of attorney holder. The complainant in the present case was neither the holder in due course nor was the authorized power of attorney holder of the proprietor of Hindustan Computers. According to the accused, the proceedings conducted by the learned Magistrate were not summary proceedings since the evidence was recorded in detail and contrary to Chapter XX of the Cr.P.C.

2. The complainant thereafter filed an application for amendment below Exhibit 176 for amendment in the complaint and also sought liberty for production of documents. The learned JMFC Court No.3 delivered a common judgment below Exhibits 171 and 176. The Court dismissed the complaint and acquitted the accused of the offences punishable under Section 138 of the Negotiable Instruments Act. Being aggrieved by the said judgment and order, the original complainant has filed the present appeals and has prayed for dismissal of the order passed below Exhibits 171 and 176 by a common judgment and order dated 22.1.2008.

3. It is the contention of the appellant that the agreement dated 19.2.2003 was in fact executed between the complainant and the accused. Thereafter, the accused had issued cheques in favour of Hindustan Computers. The agreement for cancellation was entered into by the complainant and the accused on 11.7.2003. Both the agreements are signed by Upendra Lad on behalf of Hindustan Computers. It is further stated that in fact, the power of attorney was executed on 16.10.2002 i.e. prior to entering into the agreements and therefore according to the appellant, there is no ambiguity in the complaint and the proposed amendment would not cause any prejudice to the accused. According to the Counsel for the appellant, the power of attorney which was executed in favour of the appellant by Smt. Lad is in consonance with Section 2 of the Power of Attorney Act. It is further submitted that the Court has passed the judgment and order on technical grounds and has cast a doubt on the genuineness of power of attorney.

4. The second ground of challenge is that the magistrate has exercised powers under Sec. 258 of the Criminal procedure Code. According to the Counsel, the learned Magistrate has committed a grave error by dropping the proceedings in the midst of the trial and dismissed the complaint. According to the Counsel, the accused No.2 had stepped into the witness