IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1878 of 2008()
1. M.K. DILEEP KUMAR,S/O.SHRI KRISHNAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. M/S. SHRIRAM TRANSPORT FINANCE CO. LTD.
For Petitioner :SRI.M.K.SHASHI KUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :17/07/2008
O R D E R
R.BASANT, J.
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Crl.M.C.No.1878 of 2008
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Dated this the 17th day of July 2008
O R D E R
The petitioner is the accused in a prosecution under
Section 138 of the Negotiable Instruments Act. The complainant
is a company registered and incorporated under the Indian
Companies Act. The complaint was preferred by the complainant
company through an official of the company, its power of
attorney holder. Complaint was received. Cognizance was
taken. The case is progressing before the court below. At that
stage the earlier power of attorney holder was promoted and it
became difficult for such person to continue as the power of
attorney holder of the company for the conduct of cases.
Therefore the company made a request that another person may
be permitted to function as the power of attorney holder of the
company. Substitution of the power of attorney holder was
prayed for. That application was opposed stoutly by the accused.
What is the ground of objection? The learned counsel for the
petitioner/accused submits that the power of attorney who was
to step into the shoes of the former power of attorney was a
person who did not know all the details of the transaction.
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Ignoring this objection raised by the petitioner, the learned
Magistrate allowed the petition. The prayer for substitution was
allowed. The petitioner is said to be aggrieved by the said order.
2. The learned counsel for the petitioner reiterates the
objection that the present power of attorney is not a person
competent to tender evidence on behalf of the company. I find this
objection to be absolutely untenable. The question is not whether
the present power of attorney is competent to tender evidence or
not. The question is only whether he can represent the company
which is only a fictitious legal person and not a natural legal person.
If the present power of attorney holder who represents the company
attempts to tender evidence and the court is not satisfied on his
cross examination that he has direct information about the facts to
be deposed, the value of the evidence he tenders will be too low for
acceptance. That is not the question to be considered now. At
present the only consideration is whether the present power of
attorney holder can be permitted to represent the company which is
not a natural legal person. Such representation of the company can
be made by any individual whether he be one knowing the details of
the transaction or not. The learned counsel for the petitioner raises
a further grievance that the application was not properly numbered
and that there was no proper hearing before the decision was taken
to allow the application. He complains that there was no detailed
Crl.M.C.No.1878/08 3
reasoned order.
3. The report of the learned Magistrate was called for. The
learned Magistrate accepts that there was some delay in the
numbering of petitions. But I am satisfied that the alleged defect is
not at all sufficient to assail the impugned decision on merits.
Objections have been raised in detail by the petitioner and the only
objection is what I have already referred above. That objection is
totally untenable. The fact that there was no formal hearing in the
petition or that there was no formal detailed reasoned order do not
in the facts and circumstances of this case persuade me to interfere
with the impugned order invoking the jurisdiction under Section 482
Cr.P.C.
4. The nature of the order must be alertly perceived. The
company which is a legal person and not a natural one must have
someone in flesh and blood to represent the company before the
court. The earlier person was unable to continue and therefore the
present power of attorney holder had requested that he may be
permitted to represent the company. In any view of the matter the
request cannot but be allowed.
5. This Crl.M.C is in these circumstances dismissed.
(R.BASANT, JUDGE)
jsr
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R.BASANT, J.
CRL.M.C.No. of 2008
ORDER
09/07/2008