IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 Crl.MC.No. 523 of 2010() ------------------------ CMP NO.8407/2009 IN C.C.NO.507/2008 ON THE FILE OF THE CJM, ALAPPUZHA PETITIONER(S): COMPLAINANT ------------------------------------------------------ POPULAR MOTOR CORPORATION,VI/5A,NH.47, PARAVOOR JUNCTION, PUNNAPRA NORTH P.O.,ALAPPUZHA DIST.REP.BY ITS BRANCH MANAGER, MR.TALMY N.J., S/O.JOSEPH, NARIKKAVELI HOUSE, MALIPPURAM, ERNAKULAM. BY ADV. SRI.KKM.SHERIF RESPONDENT(S): ----------------------------- 1. STATE OF KERALA,REP.BY ITS GOVERNMENT PLEADER HIGH COURT OF KERALA. 2. VINOD BHASKER, RETNA VILASAM (FROM PATHIL HOUSE, KAPPAKADA) PUNNAPRA P.O., ALAPPUZHA DISTRICT. PUBLIC PROSECUTOR SRI.KAMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C..No.523 of 2010 = = = = = = = = = = = = = = Dated this the 28 th day of May, 2010 ORDER Petitioner is a registered partnership firm. The petitioner was the complainant in C.C.No.507 of 2008 before the C.J.M, Alappuzha in a private complaint filed against the 2nd respondent herein for an offence punishable under Section 138 of the N.I.Act, 1881. The above prosecution is involving 2 cheques one for Rs.60,000/- and other for Rs.20,000/-. The complaint was filed by the Manager of the petitioner/firm who was responsible for the day-to-day affairs of the branch. The Manager was examined in the case as PW1. He claimed that he was authorised to file the complaint on behalf of the firm. At the time of taking cognizance of the offences, Manager's competency to file the complaint was not doubted or questioned by the learned Magistrate. 2. After the evidence of the compliant was over, the Crl. M.C. No. 523 of 2010 2 petitioner filed CMP No.8407/2009 under Section 311 Cr.P.C to examine to produce Annexure A2 resolution dated 16.6.2008 passed at the meeting of the partners also on 16.6.2008 authorising the Branch Manager of the firm to file the complaint and to represent the Firm in the prosecution of the matter. He also sought a re-opening of the evidence so as to further examine PW1 and one more witness who was the Accountant of the Firm at the relevant time. Both the requests in that behalf were opposed and the learned Magistrate as per Annexure A4 order dated 14.1.2010 dismissed CMP No.8407/2009. Hence this Crl.M.C. 3. I heard both sides. 4. The learned counsel for the 2nd respondent submitted that the petitioner cannot be permitted to fill up the lacuna by examining one more witness and the request for re-opening of the evidence was rightly dismissed by the learned Magistrate. Crl. M.C. No. 523 of 2010 3 5. The complainant is a partnership firm represented by its Manager. The instrumentality of the Manager was for representing not for conducting the prosecution on behalf of the complainant who had duly authorised to do so. In the light of the decision Ashalatha vs. State of Kerala (2007 (3) KLT 984), it was permissible for the Manager to represent the complainant whose case was conducted by a duly authorised Advocate. There could be no objection, therefore, in producing Annexure A2, which authorised the branch manager to represent the complainant, according to whom the resolution was misplaced at the time of filing the complaint. 6. It is true that the complainant was left content by examining the Manager as PW1. It is also true that the application to re-open the evidence was filed after the complainant's evidence was over. But the present petition was filed under Section 311Cr.P.C to examine an additional witness to substantiate the case of the complainant which is Crl. M.C. No. 523 of 2010 4 already there in black and white in the form of the complaint. The court below has not justified in shutting out the evidence, especially when the case itself was filed only in the year 2008. Annexure A4 order which is not sustainable is set aside and the authorisation produced by the complainant authorising PW1 to represent the complainant and file the complaint was liable to be received in evidence. The additional evidence sought to be examined shall also be examined and the accused shall have an opportunity to cross-examine the witness. The case shall thereafter be disposed of after giving both sides an opportunity of being heard. This Crl.M.C is allowed as above. Dated this the 28th day of May, 2010. V. RAMKUMAR, JUDGE sj