IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 883 of 2003()
1. M/S.CITY MAN CLOTHINGS INDIA LTD.,
... Petitioner
Vs
1. MUHAMMED ASHRAF, DIRECTOR,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.R.PRAVEEN
For Respondent :SRI.P.B.SAHASRANAMAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :05/06/2009
O R D E R
M.N. KRISHNAN, J.
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Crl. Appeal NO. 883 OF 2003
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Dated this the 5th day of June, 2009.
J U D G M E N T
This appeal is preferred against the order of acquittal
passed in S.T.3140/99 of the Judicial First Class Magistrate-
III, Kottayam. It is a case u/s 138 of the N.I.Act and the
complaint is filed by the power of attorney holder of the
Managing Director of the firm. It is the case that in discharge
of the liability a cheque had been issued which when presented
for encashment returned with the endorsement of insufficiency
of funds thereafter complying with the statutory requirements
action had been initiated u/s 138. The Court below acquitted
the accused on the ground that the person who has filed the
complaint did not have the power to do so in the absence of
showing that he is competent to represent the Company on
the basis of the power of attorney produced by him.
2. When the matter came up for hearing today
Crl.M.A. No.5391/09 has been filed u/s 391 of Cr.P.C. with a
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request to consider the extract of the resolution which
authorised the Managing Director to execute the power of
attorney. I do not want to say anything on the correctness of
the same at this stage for the reason that it is only a
photocopy that is available before me. The learned counsel for
the respondent contends before me it is a paramount duty of
the appellant to produce that document if it was there before
the trial court and therefore no chance need be given. The
transaction involved in the case is for 5 lakhs. The power of
attorney is produced. Now, it is a technical defence. True, if it
is sustainable the complaint has to be thrown out. But if it is
not so, it has to be entertained and there are innumerable
number of decisions which says that an authorisation or the
power to continue a proceedings even if it is defective at the
inception is curable at a later stage. So in this case if the
document is true even before inception of the complaint there
is a proper authorisation. Therefore I feel an opportunity can
be given to consider the same. Therefore the judgment under
challenge is set aside and the matter is remitted back to the
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trial court for fresh consideration and disposal. The appellant
namely the complainant herein is permitted to produce
necessary documents including the minutes relied upon and
adduce sufficient evidence necessary in support of its
contentions. Needless to say, the accused is also entitled to
raise all the contentions and if necessary all documentary
evidence in support of its contentions. The Court shall dispose
of the matter afresh in accordance with law and the parties are
directed to appear before the Court on 14.7.09.
M.N. KRISHNAN, JUDGE.
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Crl.A. 883 OF 2003
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M.N. KRISHNAN, J.
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Crl.A. No. 883 OF 2003
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J U D G M E N T
5th June, 2009