Muthoot Leasing and Finance Ltd. (now Muthoot Vehicle & Assets Finance Ltd.) v. Prem Kumar and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2013/20TH BHADRA, 1935** ## **Crl.MC.No. 134 of 2011** **--------------------------AGAINST THE ORDER/JUDGMENT IN CC 189/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT-III, KOTTARAKAKARA** ## **PETITIONER/COMPLAINANT:** **-------------------------------------------** **MUTHOOT LEASING AND FINANCE LTD., NOW RENAMED AS MUTHOOT VEHICLE & ASSETS FINANCE LTD. KURIAN TOWERS, OPPOSITE SARITHA THEATRE, BANERJI ROAD, ERNAKULAM, REP. BY ITS POWER OF ATTORNEY HOLDER BABY SUJATHA, W/O.JAISURAJ, SAISURAJ, CUSTOMS COLONY, HOUSE NO.25, POONITHURA P.O., THRIPUNITHURA** **BY ADVS.SRI.S.NIDHEESH SRI.K.VIDYASAGAR** ## **RESPONDENTS/ACCUSED AND STATE:** **--------------------------------------------------------** ## **1. PREM KUMAR, CHAITRAM, IRUMPANANGADU, EZHUKONE, KOLLAM DISTRICT-691 505.** **2. THE STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULA31.** **BY ADV.SRI. ABHIJIT LESLEY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **AS** ## **APPENDIX** |**PETITIONER'S **|**ANNEXURES:**| |---|---| |**ANNEXURE A:**|**COPY OF THE POWER OF ATTORNEY.**| |**ANNEXURE B:**|**COPY OF THE POWER OF ATTORNEY.**| |**ANNEXURE C:**|**COPY OF THE AFFIDAVIT.**| |**ANNEXURE D:**|**COPY OF THE PETITION.**| |**ANNEXURE E:**|**COPY OF THE ORDER DATED 15/12/2010.**| ## **RESPONDENTS EXHIBITS: NIL** **/TRUE COPY/** **P.A.TO JUDGE** **AS** ## K.RAMAKRISHNAN, J. ----------------------------------------------------------------Crl. M.C. No.134 of 2011 -----------------------------------------------------------------Dated this the 11[th] day of September, 2013 ## O R D E R ## K. Ramakrishnan, J This is an application filed by the complainant/ petitioner in Crl.M.P.No.68/2010 in C.C. No.189/2009, to quash Annexure-E order passed by the Judicial First Class Magistrate-III, Kottarakkara, under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that, the petitioner is the complainant in C.C.No.189/2009, a company registered under the Companies Act and the complainant was filed through Annexure-A power of attorney executed in favour of one Santhosh kumar, who was then working as manager of their Kottarakkara Branch. Thereafter, he left service and Annexure-B power of attorney was executed in the name of Suresh P. Nair on 15.06.1999, which is valid up to 18.10.2011. The said power of attorney representing the complainant/ 2 Crl. M.C. No.134 of 2011 petitioner herein, filed an application before the court below, permitting the present power of attorney to be substituted in the place of the earlier power of attorney and prosecute the case on behalf of the complainant. The respondent in that application, who is the accused therein, filed objection to the same stating that, the application is not maintainable. There is no evidence to show that the earlier power of attorney is revoked and the present power of attorney cannot represent the complainant and prayed for dismissal of the application. Accepting the contention of the respondent, the learned magistrate dismissed Annexure-D petition (Annexure-D petition accompanied by Annexure-C affidavit) by the impugned Annexure-A order, which is being challenged before this court by filing this petition. 3. Heard the counsel for the petitioner and learned Public Prosecutor. Inspite of service of notice, the first respondent remained absent. 4. It is an admitted fact that, the complainant in this case is the company represented by the power of 3 Crl. M.C. No.134 of 2011 attorney executed by the company. In the case of a legal entity, it can be represented only through its officers or person authorised by the company in that behalf. There may be cases where the officer who has been so authorised being transferred or leaving the concern, and in such circumstances, the company authorising another person to represent the company and prosecute the case is an inevitable one. In this case, it has been specifically mentioned in the affidavit itself that, the earlier person in whose name the power of attorney was executed had left the concern and that prompted the complainant company to execute fresh power of attorney, in favour of the present person, who is working in that concern. 5. Further, the person in whose name, the power of attorney is executed, can represent the company only with the leave of the court and that person alone can move the court for granting leave. It is not necessary that the complainant themselves have to move the court for that purpose. If the genuineness of the power of attorney is in question, that is a matter to be decided at Crl. M.C. No.134 of 2011 4 the time of trial and not at the time when the application was filed. Further, it is also stated in the affidavit itself that the period mentioned in the earlier power of attorney in favour of the person who represent the company and filed the complaint earlier also expired. So under the circumstances, there is nothing wrong for the complainant company to execute another power of attorney in favour of a person who is now working in the company, to represent the company in the proceedings. In the decision reported in 2007(3) LKT 984 (Ashalatha v. State of Kerala), it has been held that 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. The same view has been reiterated in the decision reported in **2008 (8) SCC 536 Shankar Finance and Investments v. State of Andhra Pradesh and Others.** Further in the decision reported in **2002(1) SCC 234 M.M.T.C Ltd. and Another v. Medchl Chemicals and Pharma (P) Ltd** ., and Another relied in the decision reported in **1998** Crl. M.C. No.134 of 2011 5 ## **(1) SCC 687 (Associated Cement Co. Ltd. v.** ## **Keshvanand)** it has been held that: “12 ....... It has further been held that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. It has been held that there may be occasions when different persons can represent the company. It has been held that it is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the court. Thus, even presuming, that initially there was no authority, still the company can, at any stage, rectify that defect At a subsequent stage the company can send a person who is competent to represent the company. The complaints could thus not have been quashed on this ground”. In view of the legal position distinguished above, the reasons stated by the learned magistrate to dismiss the application is unsustainable in law and the same is liable to be set aside. But, it is seen from the power of attorney produced as the period of authorisation in favour of the new person also expired and counsel for the petitioner also submitted that, fresh power of attorney has already been executed in favour of the same person as he is still in service of the complainant concern. So, I am disposing of this writ petition, in view of the observations made about, with a liberty for the petitioner to move the court Crl. M.C. No.134 of 2011 6 with fresh power of attorney for same purpose, and, if such application is filed, taking into consideration the legal principles mentioned in this petition, the magistrate is directed to dispose of that petition, in accordance with law. With the above liberty and observation, the petition is disposed of. _Sd/-_ K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss