IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 CRL.A.No. 2054 of 2005() ---------------------------------- CC.1112/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PERUMBAVOOR .................... APPELLANT/COMPLAINANT: ----------------------------------------- M/S. SAW MILL OWNERS ASSOCIATION, PERUMBAVOOR, REG.NO.E.R.3/66, CITY ESTATE,M.C.ROAD PERUMBAVOOR, REPRESENTED BY ITS OFFICE SECRETARY, M.H. HOITHEEN, MAYYUNNIYIL HOUSE,CHERUVATHOOR KARA ERAMALLOOR VILLAGE, KOTHAMANGALAM,ERNAKULAM DIST. BY ADV. MR.K.SUNILKUMAR RESPONDENTS/STATE/ACCUSED: ------------------------------------------------- 1. K.C. THOMAS, KAVANAMALIL HOUSE, PULLUVAZHI. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA R1 BY ADV. MR.T.N.ARUNKUMAR (PERUMBAVOOR), MR.T.K.SAJEEV. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 2054 OF 2005 = = = = = = = = = = = = = = = Dated this the 11th day of June, 2009. J U D G M E N T This appeal is preferred against the order of acquittal in C.C.1112/99 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 Office Secretary, M.H. Maitheen. 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. 2. It has to be stated that the question of competent representation had 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). The Apex Court has held that when the payee or the holder in due course is the complainant before Court and even if there is some defect it can be cured and the case need not be thrown out at the threshold level. Here, admittedly Crl. Appeal NO. 2054 OF 2005 -:2:- the complainant is the Saw Mill Owners Association. Therefore it is desirable that an opportunity is given. 3. I had the opportunity of considering a similar matter in two or three criminal appeals and I had the opportunity to peruse the bye-law as well. As per the bye-law clause 10 of sub- clause(9) it is the executive committee that has to sue and be sued. There are also relevant provisions which empowers the said committee to delegate the power to its officers. So if the executive committee had taken a valid decision to authorize a particular person to represent it before a Court of law then such person will be competent under law to file the case and proceed with the case. Therefore it is desirable an opportunity is given as is done in the other cases and therefore the order of acquittal is set aside and the matter is remitted back to the trial court with a direction to permit the complainant to produce valid documents to establish the authenticity of the person to file a complaint on its behalf. Needless to say the accused also will be entitled to produce documents. Parties are directed to appear before the Court below on 19.7.2009. M.N. KRISHNAN, JUDGE. ul/-