IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 CRL.A.No. 1130 of 2003(C) ------------------------------------- CC.NO.666/1998 OF JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... APPELLANT/COMPLAINANT: ----------------------------------------- M/S. SAW MILL OWNERS ASSOCIATION, PERUMBAVOOR, REG.NO.ER.3/66, CITY ESTATE, M.C.ROAD, PERUMBAVOOR, REP.BY ITS SECRETARY, C.P.GOPALAKRISHNAN, S/O. KUNJUNNY NAIR, AGED 57 YEARS, RESIDING AT CHENGARAMADATHIL, DARSANIPURAM, VALAYANCHIRANGARA P.O.,PERUMBAVOOR. BY ADV. MR.P.C.HARIDAS. RESPONDENTS/ ACCUSED & STATE: ------------------------------------------------------ 1. K.C.PAVIYANOSE, S/O. CHACKO, AGED 32 YEARS, KAVANAMALIL, FRAME COMPANY, PULLUVAZHY. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. MR.THOMAS M.JACOB, MR.G.RAJAGOPAL. R2 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1130 OF 2003 = = = = = = = = = = = = = = = 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 passed by the Judicial First Class Magistrate-Perumbavoor in C.C.666/98. It is the case of the complainant that in discharge of a liability the accused had issued a cheque which when presented for encashment returned with the endorsement insufficiency of funds and thereafter prosecution has been launched. The Court below acquitted the accused on the ground that the competency of the person to file the complaint has not been proved. The very same question regarding the competency to file a complaint has been considered by the Apex Court in the decision reported in M.M.T.C. Ltd. and another v. Medchl Chemicals and Pharma (P) Ltd. and another (2002 SCC(CRL) 121) wherein the Apex Court held 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 be thrown out Crl.A. 1130 OF 2003 -2- on that technical ground. Here the bye-law of the company is produced as Ext.P6. Clause 10 sub-clause (9) of the bye-law authorizes the executive committee to be sued or to sue. It is submitted that they have got the power to delegate the power given to them as well in view of other provisions in the bye- law. But unfortunately in this case only a photocopy of the minutes is seen produced which was not appealing to the Court below. I think an opportunity can be given to produce an authenticated copy after producing the original for perusal before the Court below. 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 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/- Crl.A. 1130 OF 2003 -3- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 1130 OF 2003 = = = = = = = = = = = J U D G M E N T 10th June, 2009