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2022 (10) TMI 1069 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - petitioner has challenged the impugned complaint and the impugned orders, primarily, on the ground that the complaint has not been filed through a competent person, inasmuch as original Power of Attorney in favour of Shri Basharat Gul, through whom the complaint has been filed, has not been placed on record of the trial court - section 138 NI Act - HELD THAT - It is clear that in a case where the complainant is a company, an authorized employee can represent the said company. Once an averment to this effect is made in the complaint, it is sufficient for the Magistrate to take cognizance and issue process. It also emerges that in case authority of a person filing complaint on behalf of the company is disputed by the accused, the same would be a matter of trial to be decided during the course of trial and it would not be a ground to dismiss the complaint at the threshold itself. In the instant case, the respondent/complainant has specifically pleaded that Shri Basharat Gul is the duly constituted Attorney of the Bank who is authorized to institute the complaint and verify the pleadings. A copy of the Power of Attorney has been annexed to the complaint. Therefore, the learned Magistrate was justified in taking cognizance of the complaint and issuing process against the petitioner on the basis of the impugned complaint. It is true that in the instant case the statement of the Attorney of the respondent has not been recorded on oath as contemplated by Section 200 of the Cr. P. C but then the same is only an irregularity which would not vitiate the proceedings - Besides the averments made in the complaint, the complainant has placed on record the cheque in question, the memo of dishonour, demand notice and the receipt depicting the issuance of notice. When this material is considered, even in the absence of the statement of the Attorney Holder of the complainant, a case for issuance of process against the petitioner is made out. Therefore, the mere fact that the statement of the Attorney Holder of the complainant in this case has not been recorded in accordance with the provisions contained in Section 200 of the Cr. P. C would not vitiate the whole proceedings. The argument of learned counsel for the petitioner in this regard is without any merit. There are no merits in the petition - petition dismissed.
Issues Involved:
1. Validity of complaint filing through Power of Attorney. 2. Requirement of original Power of Attorney at the time of filing the complaint. 3. Necessity of specific averments regarding the Attorney Holder's knowledge in the complaint. 4. Recording of the Attorney Holder's statement on oath under Section 200 of Cr. P. C. 5. Sufficiency of material on record for issuing process against the petitioner. Issue-wise Detailed Analysis: 1. Validity of Complaint Filing Through Power of Attorney: The petitioner challenged the complaint filed under Section 138/142 of the Negotiable Instruments Act (NI Act) on the grounds that it was not filed by a competent person. The court referred to the Supreme Court's decision in A. C. Narayanan vs. State of Maharashtra, which held that filing a complaint through a Power of Attorney is legal and competent. The court further cited Samrat Shipping Co. Pvt. Ltd. vs. Dolly George, emphasizing that a company can file a complaint through a human agency, and the authority of the person presenting the complaint can be contested during the trial. 2. Requirement of Original Power of Attorney at the Time of Filing the Complaint: The petitioner argued that the original Power of Attorney was not placed on record, only a Xerox copy was produced, which is not legally sufficient. The court, however, rejected this argument, referencing the Supreme Court's observation in M/S TRL Krosaki Refractories Ltd. vs. M/S SMS Asia Private Limited, which stated that the production of the original Power of Attorney at the time of filing the complaint is not mandatory. The court concluded that the presence of a copy of the Power of Attorney and an averment of the Attorney Holder's authority in the complaint are sufficient for the Magistrate to take cognizance. 3. Necessity of Specific Averments Regarding the Attorney Holder's Knowledge in the Complaint: The petitioner contended that the complaint did not contain specific averments about the Attorney Holder's knowledge of the transaction, which is a mandatory requirement. The court referred to the Supreme Court's ruling in A. C. Narayanan, which requires specific assertions about the Attorney Holder's knowledge in the complaint. The court found that the complaint in the present case did include such assertions, thereby satisfying this requirement. 4. Recording of the Attorney Holder's Statement on Oath Under Section 200 of Cr. P. C.: The petitioner argued that the Attorney Holder's statement was not recorded on oath as required under Section 200 of Cr. P. C. The court acknowledged this lapse but deemed it an irregularity that does not vitiate the proceedings, citing its own precedent in Rahul Kanwal vs Brig P.K.Tikoo. The court also noted that even without the Attorney Holder's statement, there was sufficient material on record to justify the issuance of process against the petitioner. 5. Sufficiency of Material on Record for Issuing Process Against the Petitioner: The court examined the material on record, including the cheque, memo of dishonour, demand notice, and receipt of notice issuance. It concluded that these documents, along with the averments in the complaint, provided sufficient grounds for issuing process against the petitioner. The court dismissed the petition, finding no merit in the arguments presented by the petitioner. Conclusion: The petition was dismissed, and the court upheld the validity of the complaint filed through a Power of Attorney, the sufficiency of a copy of the Power of Attorney, the necessity of specific averments regarding the Attorney Holder's knowledge, and the sufficiency of material on record for issuing process against the petitioner. The court also deemed the non-recording of the Attorney Holder's statement on oath as an irregularity that does not vitiate the proceedings.
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