JAYAM FOOD PROCESSING INDUSTRIES Vs. BHALRAM TRADERS

JUDGEMENT

(1.) THE petitioner has come forward with this criminal original petition seeking the relief of quashing the proceedings pending in C. C. No. 941 of 2004 on the file of the learned Judicial Magistrate No. 1, Salem.

(2.) THE learned Senior Counsel appearing for the petitioner submits that the petitioner is facing trial for the alleged offence under Section 138 of the Negotiable Instruments Act. The learned Senior Counsel has put forward two contentions. Firstly, the complaint was preferred by the complainant represented by her Power of Attorney Agent and the Power of Attorney document was not furnished to the petitioner/ accused and the document of Power of Attorney itself is defective and the complaint was signed only by the Power of Attorney and there is nothing to show that the complaint was filed by the complainant and as such, the learned Magistrate ought not to have taken cognizance of the case. Secondly, it was contended that admittedly, the complaint was preferred after a delay of 3 days and the learned Magistrate, without assigning any valid reason and without affording any opportunity to the petitioner/accused, allowed the condone delay application and taken the complaint on file and as such, the entire proceedings are vitiated.

(3.) PER contra, Mr. Palaninathan, learned counsel appearing for the respondent, contended that there is no illegality or infirmity in preferring the complaint through the Power of Attorney Agent. It is contended that the complainant may prefer the complaint through a Power Agent and there is no legal impediment, as the Power of Attorney agent has stepped into the shoes of the complainant in view of the Power of Attorney document executed in his favour by the complainant. In support of his contention, the learned counsel for the respondent would place reliance on the Division Bench decision of this Court in Gopalakrishnan, K.-vs- Karunakarann reported in (2006 (4) C. T. C. 333 ). The learned counsel for the respondent further contended that there is no contemplation of affording opportunity to the accused even before taking cognizance of the case for condoning the delay in preferring the complaint, as per the Proviso to Section 142 (b) of the Negotiable Instruments Act. It is contended that there is a delay of 3 days and the learned Magistrate has condoned the delay having satisfied about the sufficient cause shown by the complainant/respondent and it is a matter between the Court and the complainant and the accused has no locus standi to be heard at the time of condonation of delay in preferring the complaint.