Shriram Transport Finance Company Ltd. vs State of Kerala

V.K. Mohanan, J.—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 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.

Heard Sri.C.Harikumar, learned counsel for the petitioner and Sri.U.P.Balakrishnan, counsel for the 2nd respondent.

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 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.

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 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 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 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 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.