High Court of KeralaSingle Judge2014-07-10The petition under Section 482 CrPC is allowed....

Shriram Transport Finance Company Ltd v State of Kerala and Abdulla V K

Case / Petition Number:Crl.M.C. No. 308 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.K. Mohanan
Judgment Date: 2014-07-10
Court Decision / Holding: Crl.M.C allowed; Annexure A6 order quashed; Crl.M.P No.7220/2012 in CC 435/2010 allowed; petitioner permitted to proceed with the complaint on the basis of Annexure A1 Power of Attorney; court below directed to expedite the trial.
Final Disposition: The petition under Section 482 CrPC is allowed. Annexure A6 quashed; Crl.M.P 7220/2012 allowed; proceed with the case on the basis of Annexure A1 POA; expedite trial.

Parties to the Case

Appellants / Petitioners

M/S. Shriram Transport Finance Company Ltd

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam-682031
Abdulla V K, aged 40 years, S/o Kuttiali, Vannathamkandi House, Chekkiyad, Thanakkottur P.O, Parakkadavu, Vadakara-673509

Legal Representation & Advocates

Counsels for Petitioners

• Sri.C.Harikumar
• Smt.C.B.Anuroopa
• Sri.Vipin Varghese

Counsels for Respondents

• Sri.Reji Joseph
• Sri.U.P.Balakrishnan

Case Synopsis & Summary

This is a criminal miscellaneous case under Section 482 CrPC in the Kerala High Court challenging the order of the Judicial First Class Magistrate IV, Kozhikode, in CC 435/2010, in which the offence alleged under Section 138 of the Negotiable Instruments Act was being pursued against the respondent. The petitioner, a financial company, had instituted the complaint through its Power of Attorney holder, P. T. Venugopalan (Annexure A2, dated 17.03.2007). When that officer became unavailable due to ill health, the company sought to proceed through a new Power of Attorney holder, S. Noushad, via Crl.M.P. 7220/2012, treating the new appointment as if originally filed by him. The Magistrate dismissed the petition, holding that by executing Annexure A2, the earlier POA under Annexure A1 was revoked, and thus the prior POA could not be used. The High Court, after examining Annexures A1 and A2, observed that the two documents are identical in essential wording, with Clause 16 of A1 and Clause 17 of A2 indicating the POA remains in force as long as the Attorney continues in service unless withdrawn. Absent a specific revocation, the Court concluded that the earlier POA could continue to prosecute the case. Consequently, Annexure A6 was quashed, and Crl.M.P 7220/2012 was allowed, permitting the petitioner to proceed on the basis of Annexure A1. The Court directed expeditious trial of the case.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 482 of the Code of Criminal Procedure

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Annexures A1 and A2 are identically worded and that the relevant clauses provide that the Power of Attorney remains in force as long as the attorney continues in service, unless withdrawn. Annexure A2 contains no specific cancellation of Annexure A1; therefore, the earlier POA remains valid and may continue the prosecution through the original agent or via a suitable substitute. The court should not read an automatic revocation into A1 merely because a subsequent POA was executed. The petitioner relies on the principle that a juristic person may prosecute through its authorized agents and need not rely on a single individual, particularly where replacement is necessitated by practical constraints. The petitioner argues that the decision relied upon (Re E X v Y and Another) is not directly applicable to the factual matrix and should be distinguished. The aim is to ensure ends of justice by permitting continued prosecution without dismissal or derailment due to technical revocation, urging quashing of Annexure A6 and speedy trial on the basis of Annexure A1.

Contentions of Respondents

The respondents argued that Annexure A4 states Venugopalan, authorized under Annexure A2, is not available due to ill health; there is no evidence that Venugopalan was removed or that Annexure A1 was revoked; therefore, the complainant may proceed on the basis of Annexure A2 or through a substitute as permitted, and the order below (Annexure A6) should stand. It was contended that the decision cited by the petitioner (Re E X v Y and Another) is not applicable to the present facts; the court should interpret the POAs consistently with the statutory and procedural requirements, and the absence of a revocation clause alone does not automatically revive an earlier POA if the later POA stands or if withdrawal has not been proven. The respondent argued that the trial should not be forced to proceed on the basis of a potentially invalid or disputed authorization.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Re E X v Y and Another	[2000] 3 All ER 1004	Distinguished	The court referenced Re E X v Y to argue that its reasoning was not applicable to the present case and that the factual scenario differed, hence distinguishing it from the current matter.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **THURSDAY, THE 10TH DAY OF JULY 2014/19TH ASHADHA, 1936** ## **Crl.MC.No. 308 of 2013** **--------------------------------** ## **AGAINST THE ORDER IN CRL.MP.7220/2012 IN CC 435/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, KOZHIKODE** **-----------** ## **PETITIONER(S)/PETITIONER:** **-----------------------------------------** **M/S.SHRIRAM TRANSPORT FINANCE COMPANY LTD, SREEPADAM BUILDING, CHEROOTTY ROAD, KOZHIKODE REPRESENTED BY ITS POWER OF ATTORNEY HOLDER S NOUSHAD AS FILED EXECUTIVE AND NOW BRANCH MANAGER, KOZHIKODE.** **BY ADVS.SRI.C.HARIKUMAR SMT.C.B.ANUROOPA SRI.VIPIN VARGHESE** ## **RESPONDENT(S)/STATE AND RESPONDENT:** **---------------------------------------------------------------** **1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **2. ABDULLA V K, AGED 40 YEARS,** **S/O.KUTTIALI , VANNATHAMKANDI HOUSE, CHEKKIYAD, THANAKKOTTUR P.O, PARAKKADAVU, VADAKARA-673509.** **R2 BY ADV. SRI.U.P.BALAKRISHNAN R1 BY PUBLIC PROSECUTOR SRI.REJI JOSEPH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 308 of 2013** **--------------------------------** ## **APPENDIX** ## **PETITIONER(S) ANNEXURES** **-----------------------------------------** **ANNEX.A1:THE TRUE COPY OF THE POWER OF ATTORNEY DTD 8/6/2006 IN FAVOUR OF S.NOUSHAD** **ANNEX.A2:THE TRUE COPY OF THE POWER OF ATTORNEY DTD 17/3/2007 IN FAVOUR OF P T VENUGOPALAN ANNEX.A3:THE TRUE COPY OF THE COMPLAINT DTD 26/5/2010 IN CC NO 435/2010 ON THE FILE OF JFCM-IV, CALICUT ANNEX.A4:THE TRUE COPY OF PETITION IN CRMP NO 7220/2012 IN CC 435/2010 ON THE FILE OF JFCM-IV,CALICUT DTD 9/11/2012 ANNEX.A5:THE TRUE COPY OF THE OBJECTION DTD 16/11/2012 IN CRMP NO 7220/2012 IN CC 435/2010 ON THE FILE OF JFCM-IV,CALICUT ANNEX.A6:THE TRUE COPY OF THE ORDER DTD 7/12/2012 IN CRMP NO 7220/2012 IN CC NO 435/2010 ON THE FILE OF JFCM-IV, KOZHIKODE** ## **RESPONDENTS' ANNEXURES** **-------------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **V.K.MOHANAN, J =========================== Crl.M.C No.308 of 2013** **============================ Dated this the 10[th] day of July, 2014** ## **JUDGMENT** The petitioner herein is the complainant in C.C No.435/2010 on the file of the Judicial First Class Magistrate Court IV, Kozhikode, in which the offence alleged against the accused, who is the respondent herein, is under Section 138 of the Negotiable Instruments Act. The petitioner/complainant is a financial company and in the court below the complaint was instituted through its Power of Attorney holder one Mr. P.T.Venugopalan as per Annexure A2 Power of Attorney dated 17.03.2007. As the said person is not available in the company to prosecute the matter, the company moved Crl.M.P No.7220/2012 in C.C No.435/2010 through another Power of Attorney holder namely Mr.S.Noushad 2 **Crl.M.C No.308 of 2013** to permit the complainant to proceed with the matter through the new Power of Attorney as if it is originally filed by him and pass appropriate orders to meet the ends of justice. The court below after having considered the contention and the objection passed Annexure A6 order, dismissing the said petition holding that by executing a new Power of Attorney by the company in the year 2007 (Annexure A2), the Power of Attorney that is, Annexure A1 stand revoked by that of the principle itself and, thus, the earlier Power of Attorney automatically stand revoked and the same cannot be accepted. It is against the above order the present Crl.M.C under Section 482 of the Code of Criminal Procedure is filed by the very same petitioner/complainant. 2. Heard Sri.C.Harikumar, learned counsel for the petitioner and Sri.U.P.Balakrishnan, counsel for the 2[nd] respondent. 3 **Crl.M.C No.308 of 2013** 3. After having taken me through Annexures A1 and A2 Power of Attorneys, Mr. C.Harikumar, learned counsel for the petitioner, submitted that both Annexures A1 and A2 are worded similarly and in view of Clause 17 in Annexure A2, Annexure A1 Power of Attorney has not be specifically revoked and therefore, the findings of the court below is factually and legally incorrect. In support of his contention learned counsel relies upon the decision in **“Re E X v Y and Another” ([2000] 3 All ER 1004).** On the other hand, counsel for the respondent vehemently submitted that in Annexure A4 affidavit, filed before the court below in support of the above petition, what stated is that Mr.P.T.Venugopalan who is authorised as per Annexure A2 Power of Attorney is not available due to his ill health and the complainant has no case that the said person is removed from the 4 **Crl.M.C No.308 of 2013** service of the company or he ceased to be an employee of the company and, therefore, the complainant can proceed with on the basis of Annexure A2 Power of Attorney executed by the company in favour of the said P.T.Venugopalan and, therefore, there is no necessity to replace the said person through Mr.Noushad, who is the Power of Attorney holder of the company as per Annexure A1 Power of Attorney. According to the learned counsel for respondent, the decision cited and relied on by the petitioner is not relevant and inapplicable in the present case because the factual scenario in that case is entirely different from the present case. 4. I have carefully considered the submissions made by both the counsel for the petitioner as well as the respondent. On a perusal of Annexure A1 and A2 Power of Attorneys it can be seen that both the documents are identical and Clause 16 in Annexure 5 **Crl.M.C No.308 of 2013** A1 and Clause 17 in Annexure A2 are similarly worded, which is quoted hereunder, for convenience. _“This Power of Attorney is valid as long as the said Attorney continues to be in the services and employment of the Company or till the same is withdrawn by the Company. This Power of Attorney is issued pursuant to Clause 15 of the Power of Attorney issued to the Managing Director._ So, the Power of Attorney once executed will be in force, as long as in whose favour the same is executed unless the said person quit from the service of the company or till the same is withdrawn by the company. In the present case, in Annexure A2 Power of Attorney there is no specific Clause cancelling the Power of Attorney dated 08.06.2006 executed in favour of Sri.S.Noushad. Therefore, in view of the above two Clauses contained in Annexure A1 and A2, which are similarly worded, it can be seen 6 **Crl.M.C No.308 of 2013** that both the Power of Attorneys are still in force. If that be so, as rightly pointed out by the counsel for petitioner, either of the person can proceed with the complaint. But, in Annexure A4 affidavit it is stated that Mr.P.T.Venugopalan, the person who was authorized under Annexure A2 power of Attorney is not available due to his ill health and, thus, it is practically not possible for him to represent the complainant in the court below and to prosecute the case. If that be so, according to me, in the absence of any specific provision or document to show that Annexure A1 Power of Attorney is revoked, in the absence of Mr.P.T.Venugopalan, who was appointed as Power of Attorney as per Annexure A2 document dated 17.03.2007 the Power of Attorney who was appointed earlier as per Annexure A1 can continue the proceedings in the court below as the same was instituted and initiated by him. The 7 **Crl.M.C No.308 of 2013** reasoning given by the learned Magistrate in Annexure A6 order, according to me, is not sustainable in view of the Clause covered in Annexure A1 and Annexure A2 Power of Attorneys and, particularly in the absence of any document showing that the Power of Attorney given, in favour of Sri.S.Noushad as per Annexure A1, stand revoked. In the given facts and circumstances of the case it can be seen that the complainant is a finance company and being a juristic person the said company can proceed with the complaint and any other legal proceedings only through its authorized agent who are generally the officers or employees of the said company, whose availability depends upon their service conditions and therefore the company may not be in a position to depend upon one and the same person to prosecute the matters like the present one. Therefore, I am unable to sustain Annexure A6 8 **Crl.M.C No.308 of 2013** order of the court below and accordingly, the same is set aside. In the result, this Crl.M.C is allowed quashing Annexure A6 order and Crl.M.P No.7220/2012 in C.C No.435/2010 on the court of Judicial First Class Magistrate Court IV, Kozhikode is allowed and the petitioner is permitted to proceed with the complaint on the basis of Annexure A1 Power of Attorney and the court below is directed to expedite the trial of the above case. Sd/- **V.K.MOHANAN, JUDGE** **//True copy// P.A to judge** vdv