IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 565 of 2004()
1. M/S.SAW MILL OWNERS ASSOCIATION
... Petitioner
Vs
1. THE STATE OF KERALA REPRESENTED BY
... Respondent
2. T.K.JOSE, PROPRIETOR, ST.JOSEH SAW
For Petitioner :SRI.R.T.PRADEEP
For Respondent :SRI.THOMAS M.JACOB
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :10/06/2009
O R D E R
M.N. KRISHNAN, J.
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Crl. Appeal NO. 565 OF 2004
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Dated this the 10th day of June, 2009.
J U D G M E N T
This appeal is preferred against the order of acquittal in
C.C.1521/99 of the Judicial First Class Magistrate-
Perumbavoor which is an action u/s 138 of the N.I. Act. The
complainant is M/s Saw Mill Owners Association represented
by its Secretary, M.H. Maitheen and the Court below found
that the person who had signed has not succeeded in proving
that he is competent to represent and therefore disagreed with
the case of the complainant and acquitted the accused. It is
against that decision the present appeal is preferred. I had
the opportunity to consider another case elaborately in this
matter. It has been held in M.M.T.C. Ltd. and another v.
Medchl Chemicals and Pharma (P) Ltd. and another
(2002 SCC(CRL) 121) to the effect that if the complaint is
filed by the payee or the holder in due course and there is
some defect those defects are curable and the case need not
Crl.A. 565 OF 2004
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be thrown out on that technical ground. Here, I had the
opportunity to peruse the bye-law which was produced and as
per clause 10 sub-clause (9) of the bye-law it is the executive
committee which is to be sued or to sue. Admittedly such
executive committee will have the power to delegate that
power to one of its officers to proceed or to file a case.
Unfortunately the bye-law was not produced in this case.
Similarly, only a copy of the minute was produced and the
original was not produced. So whether there is a proper
authority or not was not discernible from the materials and so
the Court below acquitted the accused for non competency of
the person to file a complaint. I had already remitted other
matters back to the same Court with a direction to the
complainant to produce necessary documents and convince
the conscience of the Court regarding the competency of the
person to file a complaint on behalf of the complainant in the
case. Therefore the order of acquittal is set aside and the
matter is remitted back to the trial court for fresh disposal
after affording an opportunity to the complainant as well as
Crl.A. 565 OF 2004
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the accused to produce all documentary as well as oral
evidence in support of their respective contentions and then
dispose of the matter in accordance with law in the light of the
enunciated principles mentioned in the decision referred to
above. Parties are directed to appear before the Court below
on 13.7.2009.
M.N. KRISHNAN, JUDGE.
ul/-