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. 1840 of 2005() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.184/2005 Dated 09/03/2005 CC.1522/1999 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... APPELLANT: COMPLAINANT. ------------------------------------------ M/S.SAW MILL OWNERS ASSOCIATION, PERUMBAVOOR, REG.NO. E.R.3/66, CITY ESTATE, M.C.ROAD, REPRESENTED BY ITS OFFICE SECRETARY, M.H.MAITHEEN, S/O. M.M.HASSAN, AGED 30, MAYYUNNIYIL HOUSE, CHERUVATHOOR KARA, ERAMALLOOR VILLAGE, KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. SRI.K.SUNIL KUMAR RESPONDENTS: STATE/ACCUSED. ----------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. M.V.JOY, ST.JOSEPH MILL, PULLUVAZHI, PERUMBAVOOR. R1 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: kkms/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1840 OF 2005 = = = = = = = = = = = = = = = 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.1522/99 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. 1840 of 2005 -:2:- 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 the matter 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. 1840 of 2005 -:3:- 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/-