IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 Crl.MC.No. 2338 of 2006() ------------------------- CC.49/2002 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... PETITIONER: ------------------- T.K.JAYAPRAKASH, RENJITH NIVAS, THODIYOOR VILLAGE, KARUNAGAPPALLY TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER (GOPINATHA PILLAI, S/O.MADHAVAN PILLAI, GOKULAM VEEDU, MUZHANGODIMURI, KALLERIBHAGAM, KARUNAGAPPALLY). BY ADV. SRI.ANCHAL C.VIJAYAN RESPONDENT(S): ------------------------ 1. BHAUMADEVAN, GOKULAM VEEDU, MANAKKARA, SASTHAMANGALAM, KOLLAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.S.SANTHOSH KUMAR FOR R1 GOVT. PLEADER SHRI.C.M.KAMMAPPU. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. = = = = = = = = = = = = = Crl.M.C.No.2338 of 2006. = = = = = = = = = = = = = Dated this the 13th day of January, 2010. O R D E R The petitioner is the power of attorney of the complainant in CC.No.49/2002 on the file of the Judicial Magistrate of the First Class, Karunagappally. The complainant had been prosecuting the first respondent alleging offence under Section 138 of the Negotiable Instruments Act. The complainant filed chief affidavit as Pw1 and Exts.P1 to P6 were marked. Thereafter, it is reported that the complainant had gone abroad and was not available for cross-examination. The power of attorney holder of the complainant filed a petition as CMP.No.6484/2006 seeking an order to allow the power of attorney holder to depose on behalf of the complainant. In the cause title of the order impugned it is mentioned that Crl.M.C.No.2338 of 2006. -: 2 :- the petition was filed by the accused/petitioner and the complainant was the respondent. It appears that it is a mistake. However, in the light of the law laid down by the Apex Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. (2005(2) SCC 217), where it is held that the power of attorney holder cannot depose on behalf of the principal, the learned Magistrate dismissed the petition. Seeking an order to quash the said order in exercise of the powers vested on this Court under Sec.482 of the Code of Criminal Procedure, this petition was filed. 2. Having heard the learned counsel for the responder and the Public Prosecutor, and going by the order impugned, I find that the learned Magistrate was right in dismissing the petition. The learned Magistrate had correctly applied the law laid down by the decision supra. I find no reason to quash the said order. This petition is devoid of merit. However, the order would not stand in the Crl.M.C.No.2338 of 2006. -: 3 :- way if the power of attorney holder is examined as a witness in case he has got any knowledge regarding the allegations in the complaint and not as the complainant. It is also reported that the complainant has now returned to the station. In the event, the complainant so proposes, he can move the trial court for continuing his examination. P.S.GOPINATHAN, JUDGE KVS/-