IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 CRL.A.No. 887 of 2003() ----------------------- CC.473/1998 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... APPELLANT(S): COMPLAINANT ------------------------- M/S. SAW MILL OWNER'S ASSOCIATION PRUMBAVOOR, REPRESENTED BY ITS OFFICE SECRETARY M.H.MAITHEEN, S/O. M.M.HASSAN,AGED 30 MAYYAUNNIYIL HOUSE, CHERUVATTOOR P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. SRI.R.T.PRADEEP SRI.K.SUNILKUMAR RESPONDENT(S): STATE & ACCUSED ------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. P.P.GEORGE, AGED 40 YEARS, S/O. PAILY, PULICKAL WOOD INDUSTRIES, PULICKAL HOUSE, PULLUVAZHY. ADV. SRI.THOMAS M.JACOB FOR R2 SRI.G.RAJAGOPAL FOR R2 ADV.SRI.C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON / / , THE COURT ON 08/06/2009 DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. ----------------------------------------------- Crl. A. No. 887 OF 2003 ----------------------------------------------- Dated this the 8th day of June 2009 J U D G M E N T This appeal is preferred against the order of acquittal passed in CC 473/1998 of the Judicial First Class Magistrate Court, Perumbavoor. 2. It is a case filed under Section 138 of Negotiable Instrument Act. It is the case of the complainant that the accused owed an amount of Rs.14,006/- and towards the discharge of the same had issued a cheque which when presented for encashment returned for insufficiency of fund. Thereafter notice was sent and prosecution was initiated. The prosecution was filed by K.M. Nazar representing M/s.Saw Mill Owners Association. The defendant had raised various contentions and the main crux of the contention was to the effect that the person who had signed the complaint is incompetent to sign and it is not a properly instituted Crl. A. No. 887 OF 2003 2 complaint. The court below agreed with the same and dismissed the case. It is against that decision, the present appeal is preferred. The points that arises for determination are: 1.Whether the court below was right in dismissing the complaint. 2.Is there anything to interfere. Points 1 and 2 3. Heard learned counsel for the appellant and respondent. I will answer the first point raised in the case regarding the fact whether the complainant is properly represented. As per the complaint, the person namely Nazar was authorized to represent the Association by virtue of the resolution dated 24.1.98 by the managing committee of the accused. Ext.P7 is the bye-law. As per clause 10 of the bye-law it is the managing committee that has to sue and be sued. It is made so clear in clause 10 sub clause 9. It cannot be disputed that the said managing committee has Crl. A. No. 887 OF 2003 3 got the power to delegate that authority to any of its officers. The question regarding the competency of filing the complaint was considered by the apex court in the decision reported in 2002 Supreme Court Criminal cases 121. The apex court held as follows: “The only eligibility criteria prescribed by Section 142 for maintaining any complaint under Section 138 is that the complaint must be a payee or holder in due course. This criteria is satisfied as the complaint is in the name and on behalf of the appellant company. Therefore, even presuming that initially there was no authority still the company can, at any stage, rectify that defect. At a subsequent stage the company can send a person who is competent to represent the company. The complaint could not have been quashed on that ground.” 4. Learned counsel in the light of this decision rendered by the Supreme court would argue that in the present case also the complainant is the Association namely the payee and even if there is any defect, it is curable defect Crl. A. No. 887 OF 2003 4 and documents have been produced to show that subsequent to Nazar, one Moideen has been authorized to represent the managing committee and therefore the complaint is not defective. Learned counsel for the respondent urges before me by referring to Para 12 of the Supreme Court judgment where in the apex court has dealt with the company or Corporation. A reading of that paragraph would reveal that when it is a body corporate or a company unless a natural person capable of personally being before the court is filing the complaint, it could not be properly done and therefore a person of a human agency is inevitable for the prosecution of the case. Saw Mill Association cannot itself conduct the case. It has been represented by the person and if the executive committee, before the conclusion of the trial is able to show that a proper person is representing them, the complaint can not be dismissed on that technical ground. The company though had produced the photocopy of the resolution the Crl. A. No. 887 OF 2003 5 original of the resolution or minutes book is not seen or produced before the court below. Therefore I am inclined to grant an opportunity to the complainant. If there is a resolution dated 24.1.98 that also be produced. So that the entire contention of the accused can be answered in the correct perceptive. There are other contention also raised, since the matter is going back, I set aside the entire findings and order of acquittal and remand back the case to the trial court for fresh disposal as follows: 1. The court below shall afford an opportunity to the complainant to produce documentary as well as oral evidence for establishing the competency of the person who is examined or has filed the complaint to do so and prove that is in accordance with the bye-laws of the Saw Mill Owners Association. 2. The complainant and the accused be permitted to produce other documentary as well as oral Crl. A. No. 887 OF 2003 6 evidence in case they want to do so. The court below shall consider the materials available and also the enunciated principles referred to in the decision above and dispose of the matter in accordance with the law. 5. Parties are directed to appear before the court below on 13.7.09. M.N. KRISHNAN, JUDGE jma