IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 CRL.A.No. 880 of 2001() ----------------------- {CC.368/1997 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-III, KOZHIKODE} .................... APPELLANT(S)/COMPLAINANT: ------------------------------------------------- M/S.BENZ AUTOMOBILES PVT. LTD., 369/HIJK, EAST NADAKKAVU, KOZHIKODE - 6, REPRESENTED BY POWER OF ATTORNEY HLDER C.V.JOHNY, AGED 43 YEARS, S/O.C.P.VARGHESE, SENIOR OFFICER, M/S.BENZ AUTOMOBILES PVT.LTD., BENZ TOWERS, EDAPPALLY, COCHIN 6- 682 024. BY ADV. SRI.P.GOPAKUMARAN NAIR RESPONDENT(S)/ACCUSED & 2ND RESPONDENT: -------------------------------------------------------------------------------- 1. K.SAMY, S/O.ARUMUGHAN, AGED 46 YEARS, RESIDING AT PULLOKKAVIL HOUSE, MUKKAM P.O., (VIA) R.E.C., KOZHIKODE, - 673 602. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 ADV. SRI.SUNNY MATHEW R2 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- Crl.A.No.880 of 2001 ------------------------- Dated this the 20th day of February, 2009. JUDGMENT The complainant in C.C.No.368/97 on the file of the Court of the Judicial Magistrate of the First Class-III, Kozhikode, challenges the order of acquittal of the accused under Section 255(1) of the Cr.P.C. 2. The appellant/complainant is M/s.Benz Automobiles Private Limited, a company registered under the Companies Act. The accused had purchased certain spare parts on credit from the appellant company and had issued Ext.P1 cheque in discharge of the liability. The cheque, on presentation was dishonoured. Amount was not paid. In spite of Ext.P4 lawyer notice, the amount was not paid. Therefore, the complaint was instituted. 3. PW.1, who was examined on behalf of the company, is the Power of Attorney holder of the company. The documents relating to Power of Attorney were produced and marked as Exts.P5 and P6. Crl.A.No.880 of 2001 :: 2 :: 4. The accused took up two contentions, firstly that PW.1 had no competence to represent the complainant. Second contention was that the substantial portion of the amount, which was due to the company, had already been paid. But the cheque was not returned. 5. The court below proceeded to acquit the accused on the basis that PW.1 was not competent to represent the company and therefore, the complaint is not maintainable. The other aspects were, therefore, not considered by the court below. The accused was acquitted under Section 255(1) of the Cr.P.C. Hence this appeal by the complainant. 6. I heard learned counsel for the appellant/complainant and learned counsel for the accused. 7. The court below proceeded on the premise that the complaint was not maintainable and that there is no evidence to the effect that the persons, who have executed Exts.P5 and P6, have authority to execute them for and on behalf of the company. Crl.A.No.880 of 2001 :: 3 :: 8. Learned counsel for the appellant submits that the the view taken by the court below is unsustainable. He refers to Section 85 of the Evidence Act, which says that the court shall presume that every document purporting to be a Power of Attorney , and to have been executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate (Indian) Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated. 9. In the present case, Exts.P5 and P6 were executed by persons, who are the Directors of the Company. Significantly, there is no challenge to the status of the executors of the Power of Attorney as Directors of the Company. The Power of Attorney refers to a resolution of the Board of Directors of the company, though a copy of the resolution, as such, has not been produced. The Powers of Attorney were executed and authenticated by a Notary Public. Therefore, the court below should have proceeded under Section 85 of the Evidence Act. There is no evidence to the contra Crl.A.No.880 of 2001 :: 4 :: produced on behalf of the accused. There is no challenge to the status of the executants of Exts.P5 and P6, with reference to any person. 10. In these circumstances, I am of the view that the court below committed an error in proceeding to hold that the complaint is not maintainable. 11. Since the other evidence has not been appreciated by the court below, it is only appropriate that the matter is remitted to the trial court for fresh consideration, after holding that the complaint is maintainable. 12. In the result, the appeal is allowed. The order of acquittal is set aside. It is held that the complaint is maintainable. The matter shall stand remitted back to the trial court for fresh consideration on the basis of the evidence already adduced. Since the complaint is of the year 1997, the court below shall strive to dispose of the matter expeditiously, if possible, within six months from the date of receipt of a copy of this judgment. Crl.A.No.880 of 2001 :: 5 :: 13. The parties shall appear before the court below on 30.03.2009. Registry shall transmit the records back to the court below at the earliest. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge