Complainants can testify after the power of attorney holders without infringing procedural integrity; objections to their testimony viewed as stalling tactics.

ORAL ORDER

1. Since the issues involved in all the matters are identical, and with the consent of the learned advocates appearing for both sides, all the matters are being disposed of by this common judgment.

The factual matrix is as follows: -

2. A criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, N.I. Act), was instituted by the complainant. Initially, the power of attorney holder of the complainant was examined, and process was issued against the accused. Upon appearance, the accused pleaded not guilty and claimed to be tried. Subsequently, the power of attorney holder stepped into the witness box and was thoroughly cross-examined by the defence.

2.1. Thereafter, the original complainant filed an affidavit under Section 145 of the N.I. Act and entered the witness box. At this stage, the accused raised an objection, contending that since the power of attorney holder—who was fully conversant with the facts of the case—had already been examined, the subsequent examination of the complainant amounted to filling up lacunae in the prosecution's case. However, the learned Trial Court overruled the objection raised by the accused and permitted the examination of the complainant. The said order was affirmed by the learned Sessions Court in the revisional proceedings, with the additional observation that the impugned order passed by the learned Trial Court was interlocutory in nature and, therefore, not amenable to revision under Section 397 of the Cr.P.C.

2.3. Being aggrieved and dissatisfied with the findings recorded by the learned Trial Court, the petitioners have approached this Court by way of the present petition, seeking the following reliefs:-

“a)Admit this petition;

b) Allow this petition by quashing and setting aside an order dated 09/02/2018 passed by Ld. 10th Additional Sessions Judge, Surat in Criminal Revision Application No. 447 of 2017 and also be pleased to quashed and set aside the order dated 17/11/2017 passed below Exh.61 in Criminal Misc. Application NO. 24209 of 2015 passed by the Ld. 12th Additional Chief Judicial Magistrate, Surat.

c) Pending admission and final hearing of the present petition be pleased to stay the further proceeding Criminal Misc. Application NO. 24209 of 2015 pending in the court of Ld. 12 Additional Chief Judicial Magistrate, Surat;”

3. Heard learned advocate Mr. Dharmesh Patel for the petitioners, learned advocate Mr. Rupaal Dave for the private respondent, and learned Additional Public Prosecutor Mr. Chintan Dave for the respondent–State.

3.1. In line with the pleadings set forth in the petition, learned advocate Mr. Dharmesh Patel submitted that the power of attorney holder of the complainant, being fully conversant with all material facts and circumstances of the case, had already entered the witness box and tendered evidence on oath. It was further submitted that after a thorough and exhaustive cross-examination of the said power of attorney holder by the defence, permitting the original complainant to now step into the witness box amounts to curing the deficiencies and filling the lacunae arising out of the cross- examination, which is impermissible in law. Such an approach, it was argued, undermines the sanctity of the evidentiary process in a criminal trial and prejudices the defence.

3.2. It is further submitted that the learned Trial Court, without adequately addressing the legal issue raised, summarily overlooked the objection advanced by the accused. The confirmation of such an order by the learned Sessions Court amounts to a gross procedural irregularity and runs contrary to the fundamental principles of fair trial and due process of law.

3.3. On the strength of the above submission