IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 11TH APRIL 2011 / 21ST CHAITHRA 1933 Crl.Rev.Pet.No. 2425 of 2005 ------------------------------ CMP.657/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... REVN. PETITIONER/COMPLAINANT: --------------------- DR.GEORGE JACOB, PROPRIETOR, WYNAD RESINS, ERIYAD, PUNNAPPALA, P.O.WANDOOR. BY ADV. SRI.V.RAJENDRAN SRI.P.SAMSUDIN RESPONDENTS: --------------- 1. RELAXON, COIR AND FELL DIVISION OF GUJARAT COMPOSITE LTD., 14TH NETAJI SUBHASH ROAD, CALCUTTA. 2. N.K.BANUER, MANAGING DIRECTOR, RILAXON, COIR AND FELL DIVISION OF GUJARAT COMPOSITE LTD., 14TH NETAJI SUBHASH ROAD, CALCUTTA. 3. K.SEN GUPTA, ADMINISTRATOR, RILAXON, COIR AND FELT DIVISION OF GUJARAT COMPOSITE LTD., 14TH NETAJI SUBHASH ROAD, CALCUTTA. 4. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R4 BY PUBLIC PROSECUTOR SRI PUZHAKKARA MUHAMMED ADV. SRI.BIJI MATHEW FOR R1 & R3 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.R.P. NO. 2425 OF 2005 ======================= Dated this the 11th day of April 2011 ORDER The revision petitioner herein is the complainant and respondents 1 to 3 are the accused in C.M.P.No.657/2005 on the file of the Judicial First Class Magistrate-II, Perintalmanna. That private complaint was filed by the revision petitioner against accused 1 to 3 alleging offence under Section 138 of the Negotiable Instruments Act. The complaint was filed by the power of attorney holder of the complainant Sri. K.Girish Kumar. As per order dated 21-5-2005, the learned Magistrate dismissed the complaint as not legally maintainable with the finding that the complainant has to seek the permission of the court for instituting the complaint through the power of attorney holder. The learned Magistrate relied on the decision [reported in Jimmy Jahangir Madan v. Bolly Cariyappa Hindley, 2004(3) CRRP2425/2005 -2- K.L.T.850] and found that in this case, no such petition for permission has been filed and the complainant has not even appeared before the court for seeking permission. Aggrieved by that order, the revision petitioner has preferred this revision petition. 2. Heard the learned counsel for the revision petitioner/complainant and the learned Public Prosecutor. It is submitted by the learned counsel for the revision petitioner that in the present case neither the revision petitioner nor the witnesses cited in the complaint were examined by the learned Magistrate before dismissing the complaint. Therefore, sufficient opportunity may be given to the complainant to present the case before the learned Magistrate for which this case may be remanded to the court below, it is submitted. The learned counsel relied on the decision reported by this Court in Ashalatha v. State of Kerala, 2007(3)K.L.T.984. Paragraph 4 of the said decision reads as follows: “I am afraid that I cannot agree with the above defence contentions which overlook the fact that in most of the prosecutions (including the one on hand) CRRP2425/2005 -3- under S.138 of the N.I.Act, where a complaint is filed through a power-of-attorney, the holder of the power- of-attorney is not appointed or authorised to conduct the prosecution. The power-of-attorney comes in the picture only to fill the position of the complainant. The prosecution in such cases is conducted by the pleader or Advocate engaged by the power-of- attorney. There is, therefore, no occasion or need in such a case to invoke S.302 Cr.P.C.much less, seek the permission of the Court to conduct the prosecution either by the complainant or by the power-of-attorney”. 3. In the case on hand, it is revealed from the impugned order that the power-of-attorney dated 26-3-2005, executed by the complainant, Dr.George Jacob in favour of K.Girish Kumar, the power of attorney holder, was produced along with the complaint. In the above mentioned decision, it was concluded by this Court that “i)Since the law does not insist that the payee or holder-in-due course should personally file the complaint, his duly authorised power-of-attorney can file the complaint on his behalf. ii)As long as there is no request before court that CRRP2425/2005 -4- the power-of-attorney-holder of the complainant (payee or holder-in-due course) should be permitted to conduct the prosecution without engaging a pleader or legal practitioner, there is no question of S.302 Cr.P.C. coming into operation obliging the complainant himself to seek permission of the Curt to allow the power-of- attorney-holder to conduct the prosecution.” In the light of this decision and considering the facts of this case, I find that the impugned order of the court below is illegal and unsustainable which requires interference of this court. 4. In the result, this revision petition is allowed. The impugned order dated 21-5-2005 in C.M.P.No.657/2005 on the file of the Judicial First Class Magistrate-II, Perintalmanna is set aside and this case is remanded to the court below. The learned Magistrate is directed to take the complaint on file and proceed with the same in accordance with law. The complainant shall appear before the court of Judicial First Class Magistrate-II,Perintalmanna on 6-6-2011. M.C. HARI RANI ks. JUDGE CRRP2425/2005 -5-