CITY MAN CLOTHINGS INDIA LTD Vs. MUHAMMED ASHRAF

JUDGEMENT

(1.) THIS appeal is preferred against the order of acquittal passed in S. T. 3140/99 of the Judicial First Class Magistrate- III, Kottayam. It is a case u/s 138 of the N. I. Act and the complaint is filed by the power of attorney holder of the managing Director of the firm. It is the case that in discharge of the liability a cheque had been issued which when presented for encashment returned with the endorsement of insufficiency of funds thereafter complying with the statutory requirements action had been initiated u/s 138. The Court below acquitted the accused on the ground that the person who has filed the complaint did not have the power to do so in the absence of showing that he is competent to represent the Company on the basis of the power of attorney produced by him.

(2.) WHEN the matter came up for hearing today Crl. M. A. No. 5391/09 has been filed u/s 391 of Cr. P. C. with a request to consider the extract of the resolution which authorised the Managing director to execute the power of attorney. I do not want to say anything on the correctness of the same at this stage for the reason that it is only a photocopy that is available before me. The learned counsel for the respondent contends before me it is a paramount duty of the appellant to produce that document if it was there before the trial court and therefore no chance need be given. The transaction involved in the case is for 5 lakhs. The power of attorney is produced. Now, it is a technical defence. True, if it is sustainable the complaint has to be thrown out. But if it is not so, it has to be entertained and there are innumerable number of decisions which says that an authorisation or the power to continue a proceedings even if it is defective at the inception is curable at a later stage. So in this case if the document is true even before inception of the complaint there is a proper authorisation. Therefore I feel an opportunity can be given to consider the same. Therefore the judgment under challenge is set aside and the matter is remitted back to the trial court for fresh consideration and disposal. The appellant namely the complainant herein is permitted to produce necessary documents including the minutes relied upon and adduce sufficient evidence necessary in support of its contentions. Needless to say, the accused is also entitled to raise all the contentions and if necessary all documentary evidence in support of its contentions. The Court shall dispose of the matter afresh in accordance with law and the parties are directed to appear before the Court on 14. 7. 09.