IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 Crl.MC.No. 468 of 2008() ------------------------ ST.120/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, TRIVANDRUM .................... PETITIONER: COMPLAINANT: ---------------------------------------------- M/S. SUNDARAM INDUSTRIES LTD., C.I.T. ROAD, KILLIPPALAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS BRANCH MANAGER. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.HEMALATHA SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN RESPONDENTS: ACCUSED & STATE: ------------------------------------------------------------- 1. R. RADHAKRISHNAN, R.V. TRADERS, 28TH MILE, NAVAIKULAM, VETTIYUR P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No.468 of 2008 = = = = = = = = = = = = = = Dated this the 1st day of February, 2008 ORDER The petitioner, who claims to be the complainant in S.T.No.120/2006 on the file of J.F.C.M-I, Thiruvananthapuram seeks to quash Annexure 4 order dated 4.8.07 passed by the learned Magistrate insisting that the original complainant in the case shall be examined before the Magistrate. 2. The above case is a prosecution under Section 138 of the Negotiable Instruments Act, 1881 in respect of a cheque involving an amount of Rs.18,075/-. The complaint was filed by one Ramasubramanian the then Assistant Branch Manager (Sales). The proof affidavit in support of the complaint was also filed by him. On 4/08/07 he was examined as PWI and Exts.P1 to P4 were also marked. Thereafter, he was being cross-examined on behalf of the defence. During cross-examination he admitted that the complainant-company has no office at Kaimanam as shown in the cause title of the complaint and that Kaimanam was mistakenly shown for Killipalam. Since the said witness could not satisfactorily given answers to the questions put to him Crl.M.C.No.468 of 2008 2 during cross-examination, the learned Magistrate passed Annexure 4 order stopping the examination and directing the appearance of the original complainant namely Joint Managing Director of the complainant- company for further examination. The petitioner claims to have filed CMP No.5746 of 2007 for correction of the place in the title to substitute the word Killipalam in the place of Kaimanam. The said petition is stated to be still pending. It is at that stage that this Crl.M.C. has been filed under Section 482 Cr.P.C, seeking to set aside Annexure 4 order passed by the learned Magistrate insisting on the personal appearance of the Joint Managing Director of the complainant- company 3. The learned counsel for the petitioner submits that Ramasubramanian, the then Assistant Branch Manager (Sales) who has given proof affidavit and who was examined in part has since been promoted and transferred to Salem branch and that subsequently Annexure 3 authorization has been filed by the complainant-company authorizing one V Samuel Juno who is the Branch Manager of the Killipalam branch to conduct prosecution Crl.M.C.No.468 of 2008 3 of the case. That Annexure III authorization does not refer to the case before the court below . But the case which is referred to in that authorization is Crl.Appeal No.120/2006 which is obviously a mistake. If according to the complainant, the loan in question was advanced by the Kaimanam branch and the company has no branch at Kaimanam, they will have to produce convincing evidence to prove the same before Annexure 4 for correction of the cause title can be allowed. So also the insistence by the learned Magistrate of examining the original complainant could be dispensed with only if it is shown by adequate material that the person who was examined in part has since been promoted and transferred to Salem and that there is a valid authorization in favour of his successor one V Samuel Juno to conduct the case before the court below and that he is a competent witness to depose on behalf of the complainant. Hence this Crl.M.C is disposed of permitting the petitioner to adduce reliable evidence to show that M/s. Sundaram Industries Ltd. does not have a branch at Kaimanam and that the transaction in question was entered into by the Killipalam branch of the company and further Crl.M.C.No.468 of 2008 4 that Sri.Ramasubraminan the person who was examined in part before the court has become unavailable for further examination and also produces valid authorization in favour of V. Samuel Juno, the succeeding Branch Manager to continue the prosecution. This will be subject to the question regarding the competency of the succeeding Branch Manager to give evidence on behalf of the complainant. In case proper documentary evidence is adduced on the above aspects, the learned Magistrate may consider allowing Annexure 5 petition for correction of cause title and for the examination Samuel Juno in the place of Ramasubramanian subject of course to the objections to be raised by the respondents. V. RAMKUMAR, JUDGE sj