Gulam Ibrahim and ors. Vs. Basheer Ahmed - Court Judgment

Excerpt:
- negotiable instruments act, 1881[c.a. no. 26/1881]section 138; [v.jagannathan, j] whether the power of attorney holder is competent to file the complaint and give the evidence in a proceedings under section 138 of the act? held, there is no bar for the power of attorney holder to initiate proceedings under section 138 of the act . the power of attorney holder is also competent to give evidence on behalf of the complainant. section 138; complaint under whether the cheques issued being transferred to another branch of the same bank, attract the offence under section 138 of the n.i. act ? held, whether the cheque was returned for the reasons of the account being closed or the account being transferred to some other branch, is not the criteria, but the fact is that there was no fund..........that it was a time barred prosecution was reversed by the court of session on the ground that the period of limitation applicable to the prosecution was that prescribed by section 92 of the trade and merchandise marks act, 1958, and not that prescribed by section 15 of the merchandise marks act, 1889 which was repealed. the petitioner who is the accused makes complaint that there was a misapplication of section 92 of the 1958 act, and that the prosecution was really governed by the provisions of the repealed act.2. it is clear that both the magistrate and the court of session overlooked the fact that the offences with which the accused was charged are those said to have been committed under sections 482, 483 and 486 of the penal code, whereas the period of limitation to which section 92.....

Judgment:
ORDER

1. The order of the Magistrate who dismissed the complaint on the ground that it was a time barred prosecution was reversed by the Court of Session on the ground that the period of limitation applicable to the prosecution was that prescribed by Section 92 of the Trade and Merchandise Marks Act, 1958, and not that prescribed by Section 15 of the Merchandise Marks Act, 1889 which was repealed. The petitioner who is the accused makes complaint that there was a misapplication of Section 92 of the 1958 Act, and that the prosecution was really governed by the provisions of the repealed Act.

2. It is clear that both the Magistrate and the Court of Session overlooked the fact that the offences with which the accused was charged are those said to have been committed under Sections 482, 483 and 486 of the Penal Code, whereas the period of limitation to which Section 92 of the 1958 Act and that to which the repealed Act refers, do not refer to prosecutions in respect of offences punishable under the Penal Code and prescribe a period of limitation for a prosecution for offences committed under those special laws.

3. That being so, the view taken by the Court of Session is unexceptionable, although the process by which it reached that conclusion is unsupportable.

4. Mr. Muralidhara Rao appearing for the petitioner however, contended that the Court of Session had no jurisdiction to set aside the order of discharge made by the Magistrate, and that all that it could have done was to make a reference to this Court. This argument cannot be of assistance to Mr. Muralidhar Rao for the reason that, if it is otherwise acceptable, I can set aside the order of the Magistrate in the exercise of my revisional jurisdiction.

5. Mr. Muralidhara Rao contends that having regard to the language of Sections 482, 483 and 486 of the Penal Code, as those sections stood amended at the relevant point of time, the prosecutions are unsustainable. But, into that Question, no investigation has so far been made by any one, and if the petitioner is so advised he is at liberty to advance that contention before the Magistrate even now.

6. With these observations I dismiss this revision petition.

7.Petition dismissed.