IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 Crl.Rev.Pet.No. 712 of 2001() ----------------------------- CRL.MP.6862/1999 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... REVN. PETITIONER/COMPLAINANT: --------------------- THE ASSOCIATED CEMENT COMPANIES LTD., ZONAL OFFICE AT 41/880 D2, 2ND FLOOR, GOLDEN PLAZA, CHOTTOOR ROAD, KOCHI 682 018, REP.BY ITS POWER OF ATTORNEY HOLDER AND SENIOR MANAGER JAYANTY VIJAYA BASKARA SASTRY. BY ADV. SRI.P.M.KUNJIMOIDEENKUTTY RESPONDENT(S)/ACCUSED: ------------------------------- 1. MR.SAJI MATHEW, PROPRIETOR, M/S THADATHIL STEEL CENTRE, PADIMON P.O., MALLAPPALLY, PATHANAMTHITTA DISTRICT, PIN 689 587. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.RAVINDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C.HARI RANI, J. ----------------------------------------------------- Crl.R.P.No.712 OF 2001 ----------------------------------------------------- DATED THIS THE 25th DAY OF SEPTEMBER, 2009 J U D G M E N T Revision petitioner is the complainant in Crl.M.P.No.6862/99 on the file of Judicial First Class Magistrate's Court-II, Ernakulam. The complaint was filed on 10.8.1999 alleging offence under Section 138 of Negotiable Instruments Act against the first respondent as the accused in the proceedings before the court below. The complainant is the Associated Cement Companies Ltd. represented by its power of attorney holder Senior Manager Mr.P.Udaya Sankar, on the basis of the general power of attorney executed in his favour on 20.11.1998 as revealed from the list of documents produced along with the complaint, true photostat copy of which was shown as item 8. The complainant was absent on 10.8.1999 and the learned Magistrate excused the absence of the complainant and posted for enquiry to various dates till 26.2.2001. The complainant did not appear on any of the posting dates and filed petitions by the learned counsel on some days, to condone the absence of the Crl.R.P.No.712/2001 -2- complainant. In those petitions, it was stated by the learned counsel that the case stands posted for recording the sworn statement and the complainant /power of attorney holder Shri P.Udaya Sankar underwent cardiac surgery and was undergoing rest and not in a position to travel to Cochin. Those petitions were allowed and the absence of the complainant was excused on various occasions by the learned Magistrate. Subsequently, from 11.12.2000 onwards, the grounds mentioned in the petitions filed by the learned counsel for the complainant to condone the absence of the complainant was that the power of attorney holder Shri P.Udaya Sankar has retired voluntarily from the Company and a meeting of the Board of Directors was being held by its registered office at Mumbai for appointing the new power of attorney. For that reason adjournment was sought for by the learned counsel for the complainant for substituting the complainant by the new power of attorney holder. Time was granted by the learned Magistrate on several occasions and subsequently on 26.2.2001, the learned Magistrate passed the impugned order whereby the complaint was dismissed under Section 203 Cr.P.C. That order is challenged by the revision Crl.R.P.No.712/2001 -3- petitioner in this petition. 2. Heard the learned counsel appearing for the petitioner. No appearance was made by the first respondent/accused in spite of service of notice issued from this Court in this revision filed on 8.6.2001. 3. It is submitted by the learned counsel appearing for the petitioner that though the case was posted by the learned Magistrate to 24.2.2001, due to an inadvertent mistake on the part of the Advocate Clerk, the posting was noted as 28.2.2001 instead of 24.2.2001. Hence, no application was filed and no representation was made on behalf of the complainant before the lower court to condone the absence of the petitioner and complaint was happened to be dismissed on 26.2.2001 under Section 203 of Cr.P.C. According to the learned counsel, no sworn statement of the complainant was recorded before dismissing the complaint under Section 203 of Cr.P.C. It is mentioned in this revision petition that the reasons mentioned in the petitions to condone the absence of the complainant filed before the court below on the previous posting dates were not considered by the learned Magistrate before dismissing the Crl.R.P.No.712/2001 -4- complaint and for those reasons the order of dismissal under Section 203 of Cr.P.C. dated 26.2.2001 is liable to be set aside and an opportunity may be given to the revision petitioner to give his sworn statement before the lower court. 4. Being a revisional court, the grounds for interference of this Court is limited. This Court can interfere with the order only if this Court is satisfied that any illegality or incorrectness or impropriety is there in the order passed by the court below. On verifying the records in this case, I find that though the complaint was filed by the complainant as early as on 10.8.1999, till 26.2.2001, the complainant did not appear on any of the posting dates before the court below. On some of the posting dates, the learned counsel for the complainant filed petitions to condone the absence of the complainant for the reason that power of attorney holder who represent the complainant/Public Limited Company was laid up and underwent cardiac surgery and was taking rest at Coimbatore on medical advice and could not travel to Cochin for giving the sworn statement. Thereafter, that power of attorney holder retired from the Company, which necessitated the Company to convene meeting of the Board of Directors, to be Crl.R.P.No.712/2001 -5- held at its registered Office at Mumbai for appointing the new power of attorney. Those reasons mentioned in the petition filed by the learned counsel for the complainant were considered by the learned Magistrate in favour of the complainant and the complaint was adjourned for various dates till 26.2.2001. The power of attorney holder, Shri Udaya Sankar represented the Company on the basis of the general power of attorney dated 20.11.1998 as revealed from the complaint itself. Subsequently, this revision petition is filed on 8.6.2001 represented by its power of attorney holder, Shri.Jayanty Vijaya Bhaskara Sastry. Subsequently, the petitioner filed attested photostat copy of the power of attorney executed in his favour as early as on 3.12.1996. No reason whatsoever has been stated in this petition for not producing the power of attorney executed on 3.12.1996 before the court below, till the dismissal of the complaint on 26.2.2001. At that time, the alleged power of attorney executed in favour of the present power of attorney holder was in force and he could have represented the complainant before the dismissal of the same by the learned Magistrate. The complainant was absent and no representation Crl.R.P.No.712/2001 -6- was made on several posting dates before the court below. It was noted by the learned Magistrate in the impugned order dated 26.2.2001 that the complainant was continuously absent and for that reason the complainant could not be examined under Section 200 Cr.P.C., though the complaint is of the year 1999. Therefore, the learned Magistrate was unable to proceed with the complaint in the absence of the complainant. The learned Magistrate was of the opinion that there was no sufficient reason for proceeding with the complaint and accordingly, the complaint was dismissed under Section 203 Cr.P.C. I find no ground for interference of that order which the learned Magistrate was compelled to pass, after considering the repeated absence of the complainant and due to the inability to proceed with the complaint in the absence of the complainant. I find that this petition is liable to be dismissed. I do so. 5. In the result, this petition is dismissed. M.C.HARI RANI, JUDGE. dsn