Karnataka High Court
Smt Kalyani Prabu vs M/S Sree Sai Tiles Pvt Ltd on 1 July, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF JULY 2013
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION NO.5426 OF 2008
BETWEEN:
SMT KALYANI PRABU
W/O SRI K.PURUSHOTHAM PRABHU
AGED ABOUT 50 YEARS
NO 2 & 3 SANKEY APARTMENTS
NO.191, T.CHOWDAIAH ROAD
SADASHIVANAGAR, BANGALORE - 560 080.
... PETITIONER
[BY SRI. MAHESH & CO, ADV.,]
AND:
1. M/S SREE SAI TILES PVT LTD
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT, 1956
HAVING ITS OFFICE AT NO.22285
GROUND FLOOR, IST CROSS
CAMBRIDGE LAYOUT
ULSOOR BANGALORE
REPRESENTED BY ITS
MANAGING DRIECTOR
SRI VINAY KUMAR NAIK.
2. SRI ANANDA SHETTY
RAJ BANJARA APARTMENTS, 201
(OLD MADRAS ROAD BINNAMANGALA
BANGALORE - 560 038.
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3. SRI VINAY KUMAR NAIK
64, II CROSS, LAST STAGE
INDIRANAGAR, BANGALORE.
...RESPONDENTS
*****
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF THE CR.P.C. WITH A PRAYER TO SET ASIDE THE
ORDER DATED 27.6.2008 PASSED BY THE XV ACMM.,
BANGALORE DISMISS THE MEMO DATED 5.10.07 FILED BY
THE COMPLAINANT IN C.C.NO.5824/04 AND PERMIT THE
PETR. TO LEAD HER EVIDENCE THROUGH HER POWER OF
ATTORNEY.
THIS CRIMINAL PETITION COMING FOR ORDERS ON
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Though the matter is listed for orders regarding furnishing of correct address, process fee etc., for issuance of fresh notice to the respondents, the matter is heard on merits with the consent of the learned counsel for the petitioner.
2. In this petition filed under Section 482 of Code of Criminal Procedure, the legality and correctness of the order dated 27.6.2008 passed by the XV Additional CMM, Bangalore in C.C.No.5824/04 rejecting the memo filed on behalf of the complainant is called in question. 3
3. The petitioner-complainant filed complaint alleging offence punishable under Section 138 of the Negotiable Instruments Act against the respondent- accused. However, during the proceedings, a memo on behalf of the complainant came to be filed on 5.10.07 seeking permission to conduct the said case on her behalf through a Special Power of Attorney holder inter alia stating that the complainant being a resident of Mumbai, is not in a position to frequently travel to Bangalore for the purpose of appearing before the Court, as such she has constituted an agent-Power of Attorney to conduct the present case on her behalf. Along with the said memo a copy of the Power of Attorney was also produced. The said memo was opposed by the respondents by filing objections.
4. The learned Magistrate after hearing both sides, by order impugned in this petition rejected the said memo mainly on the ground that no satisfactory reasons are made out for permitting the complainant to prosecute the 4 case through a Power of Attorney. During the hearing of the said memo, it was contended that on account of the serious ill-health of the complainant she is unable to travel to Bangalore from Mumbai. However, looking into the contents of the Power of Attorney, a copy of which had been produced, the learned Magistrate held that the reason of ill-health is not forthcoming in the Power of Attorney for constituting an Agent and therefore, on that ground the permission sought cannot be granted.
5. The petitioner did not produce any evidence to show that she is seriously ill and she is unable to travel to Bangalore from Mumbai to give evidence. On the other hand according to the contents of the Power of Attorney, on account of her pre-occupation in Mumbai, she is unable to travel to Bangalore. It is in the light of this inconsistency, the learned Magistrate rejected the said memo. Aggrieved by the said order, the present petition is filed.
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6. Having heard the learned counsel for the petitioner, I find no justifiable grounds to interfere with the said order. The order impugned in this petition, having regard to the facts and circumstances of the case, does not suffer from any perversity or illegality warranting interference. Admittedly, the complaint was presented by the complainant in her individual capacity and at the time of filing of the complaint she was not represented by Power of Attorney holder. The fact that the petitioner is pre-occupied with some work in Mumbai cannot be a ground to seek permission as sought in the memo. There is no specific provision in the Code of Criminal Procedure or in Negotiable Instruments Act, which requires the complainant to seek such permission. Even according to the ratio of the decision relied upon by the counsel for the complainant before the Trial Court, a complaint can be filed by the Power of Attorney when the Power of Attorney has full knowledge of transaction and under such circumstances his statement can be recorded by the learned Magistrate for verification of the complaint. As 6 observed by the learned Magistrate in the impugned order, no where in the memo or in the Power of Attorney it has been stated that the Power of Attorney holder has full knowledge of the transaction. Therefore, he cannot be accepted as a competent witness to speak about the transaction on behalf of the complainant. In this view of the matter, the Trial Court is justified in rejecting the memo. Therefore, there is no merit in this petition. Accordingly, petition is rejected.
However, if the petitioner has any genuine reasons for her non-appearance before the Trial Court in Bangalore, it is open to her to seek such orders as is open to her in law before the Trial Court.
Sd/-
JUDGE SS*