IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 CRL.REV.PET.NO. 3237 OF 2008() ---------------------------------------------- AGAINST THE ORDER DATED 18/07/2008 IN CRMP 1460/2004 IN ST.155/2005 OF CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD .................... REVN. PETITIONER(S): PETITIONER/COMPLAINANT ------------------------------------------------------------------------- SHRIRAM TRANSPORT FINANCE CO.LTD. (FORMERLY KNOWN AS SHRIRAM INVESTMENTS LTD) HAVING ITS REG.OFFICE AT 123, ANGAPPA NAICKEN STREET, CHENNAI. REP. BY POWER OF ATTORNEY HOLDER SRI.VENUGOPALAN P.T., LEGAL CONSULTANT,M/S.SHRIRAM TRANSPORT FINANCE CO.LTD, SREEPADAM BUILDING, KZD. BY ADV. SRI.RAJESH NAMBIAR RESPONDENT(S): STATE & ACCUSED ------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. M.MURALEEDHARAN, S/O.RAMANKUTTY NAIR, AMMATH HOUSE, KALLIPADAM P.O., MELEKKAD, SHORNUR, PALAKKAD. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN R1 ADV. SMT.T.D.RAJALAKSHMI FOR R2 SRI.R.SREEHARI FOR R2 SRI.SREELAL N.WARRIER FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.3237 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 26th day of May, 2009 O R D E R -------------- M/s. Shriram Investments Ltd., represented by one Sumesh claimed to be its Assistant Branch Manager and Power of Attorney holder filed a private complaint against respondent No.2 as Crl. M.P. No.1459 of 2004 in the court of learned Chief Judicial Magistrate, Palakkad alleging offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). As there was two days' delay in filing the complaint, Crl.M.P. No.1460 of 2004 was filed accompanying the complaint to condone that delay. That petition was supported by the affidavit of the counsel explaining the reason for the delay. After notice to respondent No.2 and after conducting an enquiry as provided, learned Chief Judicial Magistrate allowed Crl.M.P. No.1460 of 2004. Respondent No.2 challenged that order in this Court in Crl.R.P. No.860 of 2005 on the ground that the affidavit filed in support of the petition to condone delay is not of the complainant but of the counsel. That contention was upheld, the order condoning delay was set aside and the matter was remanded giving opportunity to the complainant to file proper affidavit and with a direction to the trial court to consider the petition afresh. Thereafter one Rajeev filed CRL. R.P. No.3237 of 2008 -: 2 :- affidavit (dated 16.3.2006) on behalf of the complainant. After conducting enquiry based on that affidavit, Learned Chief Judicial Magistrate came to the conclusion that delay cannot be condoned since the private complaint is filed by one Sumesh but affidavit dated 16.3.2006 (after remand) is sworn by one Rajeev. Noting the above 'discrepancy', Crl.M.P. No.1460 of 2004 was dismissed. That order is under challenge by the petitioner, 'M/s.Shriram Transport Finance Co. Ltd'. 2. Learned counsel for petitioner contended that in view of the decision of the Division Bench of this Court in Abdurehiman v. Sethu Madhavan (2006(4) KLT 33) it was not absolutely necessary that a complainant himself should swear the affidavit and what is required is only to place the necessary materials before the court for condoning the delay, which was done by the petitioner. It is also contended by counsel that there is actually no discrepancy as pointed out by learned magistrate since the compliant was not filed by 'Sumesh' but by M/s.Shriram Investments Ltd represented by its Branch Manager, Sumesh and the affidavit dated 16.3.2006 is sworn by Shri Rajeev, Regional Manager of the company. Learned counsel for respondent No.2 contended that revision petition itself is not maintainable since it is not filed by the 'complainant' but a different entity. It is contended by counsel that since that entity had not CRL. R.P. No.3237 of 2008 -: 3 :- obtained the leave of the trial court to continue the proceedings as provided under Section 302 of the Code of Criminal Procedure (for short, “the Code”), petition for condoning delay is not maintainable. Counsel placed reliance on the decision of this Court in M/s. Kasargod Self Employees Financing Co. Ltd. v. State of Kerala (ILR 2008 (4) Ker. 283). 3. Counsel for petitioner does not dispute that though Crl.M.P. Nos.1459 and 1460 of 2004 are filed by 'M/s.Shriram Investments Ltd', that company subsequently merged with M/s.Shriram Transport Finance Co. Ltd. which has filed the present revision. As per Sec.302 of the Code which is considered in the decision referred to and relied on by the counsel permission of the court was required for M/s.Shriram Transport Finance Co. Ltd. to continue the proceedings in the court below. 4. So far as the maintainability of this revision is concerned, revision petitioner is the mergee company and at any rate a revision petition could be filed by any person who could bring to the notice of the court the alleged illegality, irregularity or impropriety in the order or proceedings of the subordinate criminal court. Therefore that, revision is filed by M/s.Shriram Transport Finance Co. Ltd. need not deter this Court from considering the legality, regularity or propriety of the order under challenge. CRL. R.P. No.3237 of 2008 -: 4 :- 5. So far as the affidavit sworn by Rajeev who is claimed to be the Regional Manager of the mergee company is concerned, in the affidavit he has described himself as Regional Manager of the erstwhile company. In Abdurehiman's case it was held that the affidavit of the complainant himself/itself is not necessary to condone the delay. What is involved in this case is only that the deponent has described himself as Regional Manager of the erstwhile company instead of the mergee company which of course is a curable defect. 6. But there is a factual mistake in the learned Chief Judicial Magistrate observing that Crl.M.P. Nos.1459 and 1460 of 2004 are filed by one Sumesh. Sumesh has only represented the company. In the facts and circumstances I am inclined to give the petitioner an opportunity to comply with Sec.302 of the Code and to file a proper affidavit of the person representing the mergee company. Resultantly, this revision is allowed. The order under challenge is set aside and the matter is remitted to the court of learned Chief Judicial Magistrate, Palakkad for fresh disposal in accordance with law and in the light of the observations made above. Parties are directed to appear in the trial court on 29.6.2009. THOMAS P.JOSEPH, JUDGE. vsv