IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 CRL.A.No. 2210 of 2005 --------------------------------- [CC.NO.681/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT, SASTHAMCOTTA DATED 17/08/2005] .................... APPELLANT/COMPLAINANT: ---------------------------------------- KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, SASTHAMCOTTA UNIT, REPRESENTED BY ITS PRESENT SECRETARY, M.JAMES ALIAS ALPHA JAMES, JINU'S BHAVAN, MANAKARA, SASTHAMCOTTA.P.O, KOLLAM. BY ADVS. SRI.K.BABU THOMAS, SMT.MARYKUTTY BABU. RESPONDENTS/ACCUSED: --------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. IBRAHIMKUTTY, S/O.KASIM, VATTAVILAKIZHAKETHIL HOUSE, PALLISSERICAL.P.O, PALLISSERICAL MURI, SASTHAMCOTTA VILLAGE, KOLLAM. R1 BY PUBLIC PROSECUTOR SRI. ALEX M. THOMBRA, R2 BY ADV. SRI.K.SUBASH CHANDRA BOSE. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Prv. N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.2210 of 2005 --------------------------------- Dated this the 23rd day of August 2011 J U D G M E N T The Kerala Vyapari Vyavasayi Ekopana Samity, Sasthamcotta Unit represented by its Secretary who is the complainant is the appellant. The complaint was filed against the 2nd respondent alleging offence punishable under Sec.138 of the Negotiable Instruments Act. The allegation was that the accused had borrowed from the Samity a sum of Rs.2,50,000/- and to discharge that debt, Ext.P1 cheque was issued which on presentment was dishonoured due to insufficiency of funds. On receipt of the intimation from the bank, statutory notice was sent. It was acknowledged by him but the amount was not paid. Hence, the complaint was filed. 2. The Secretary of the Samity was examined as PW1 and Exts.P1 to P7 were examined. Crl.A.No.2210 of 2005 -: 2 :- 3. The learned Magistrate acquitted the accused under Sec.255(1) Cr.P.C. holding that PW1 did not produce any power of attorney to show that he was authorised by the Samity to file the complaint and to prosecute the matter. 4. The learned counsel for the complainant would submit that Ext.P7, the minutes of the Samity was produced which deals with the filing of complaints before court for recovery of the cheque amounts. It says that besides the Secretary, President, Vice President, Treasurer and even members of the Executive Committee can be authorised, executing power of attorney in their names, to prosecute the complaints. But here, no power of attorney was produced. Of course, the power of attorney may not be necessary if it is shown that the person who signed the complaint and gave evidence before the court was the Secretary of the Samity provided further that the bye-laws of the Samity empowers the Secretary to prosecute the Crl.A.No.2210 of 2005 -: 3 :- case. 5. No power of attorney was produced but the complainant contended that Sivan Pillai was actually the General Secretary and as such no power of attorney was required. The bye-law of the Samity was not produced. No document was also produced to show whether the Samity was registered as per the Societies Registration Act or under any other Act. 6. It is also noticed that when affidavit in lieu of chief examination was filed by the complainant instead of asking the witness to mount the witness box to enable the accused to cross examine the witness the learned Magistrate asked the accused to file a counter affidavit. It is a criminal case where veracity of the witness has to be tested by subjecting him to cross examination. Filing of counter affidavit for that purpose is not acceptable in a case of criminal trial. Document should have been produced to show the authority of PW1 to represent the Samity. There Crl.A.No.2210 of 2005 -: 4 :- was no consideration of any of these aspects. Hence this case has to be remanded to the trial court. In the result, this Crl.A. is allowed. The judgment of acquittal passed by the learned Magistrate is set aside. The case is remanded to the learned Magistrate for fresh disposal in accordance with law. Both parties are given opportunity to adduce evidence in the matter. Both parties will appear before the trial court on 28.9.2011. N.K.BALAKRISHNAN, JUDGE. Jvt