9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2008 (6) TMI 549 - SC - Companies LawWhether the complaint under section 138 of the Act signed by a Attorney holder is not maintainable? Whether the attorney holder can lodge the complaint? Held that - In regard to business transactions of companies partnerships or proprietary concerns many a time the authorized agent or attorney holder may be the only person having personal knowledge of the particular transaction; and if the authorized agent or attorney-holder has signed the complaint it will be absurd to say that he should not be examined under section 200 of the Code and only the Secretary of the company or the partner of the firm or the proprietor of a concern who did not have personal knowledge of the transaction should be examined. Of course where the cheque is drawn in the name of the proprietor of a proprietary concern but an employee of such concern (who is not an attorney holder) has knowledge of the transaction the payee as complainant and the employee who has knowledge of the transaction may both have to be examined. Be that as it may. In this case we find no infirmity. Allow this appeal set aside the impugned order dated 21.8.2002 and direct the learned Magistrate to proceed with the complaint as already directed by the interim order.
Issues Involved:
1. Maintainability of a complaint under Section 138 of the Negotiable Instruments Act, 1881, signed by a Power of Attorney holder. 2. Authority of a Power of Attorney holder to initiate legal proceedings on behalf of a proprietary concern. 3. Examination of the complainant under Section 200 of the Code of Criminal Procedure (Cr.PC). Issue-wise Detailed Analysis: 1. Maintainability of a Complaint under Section 138 of the Negotiable Instruments Act, 1881, Signed by a Power of Attorney Holder: The Supreme Court addressed whether a complaint under Section 138 of the Negotiable Instruments Act, 1881, signed by a Power of Attorney holder, is maintainable. The appellant challenged the Andhra Pradesh High Court's decision, which quashed the complaint on the grounds that it was not signed by the payee but by his Power of Attorney holder. The Court referred to Section 142(a) of the Act, which requires that the complaint be made in writing by the payee or the holder in due course. The Court emphasized that the complaint was filed in the name of "M/s Shankar Finance & Investments, a proprietary concern of Sri Atmakuri Sankara Rao, represented by its Power of Attorney Holder Sri Thamada Satyanarayana," thus fulfilling the requirements of Section 142(a). 2. Authority of a Power of Attorney Holder to Initiate Legal Proceedings on Behalf of a Proprietary Concern: The Court examined whether a Power of Attorney holder could lodge a complaint on behalf of a proprietary concern. It was established that the Power of Attorney holder acts as the agent of the grantor, and when authorized, can initiate legal proceedings on behalf of the grantor. The Court noted that the complaint could be validly filed in several ways, including by the proprietor himself or by the proprietary concern represented by its attorney holder. The Court cited previous judgments, such as *MMTC Ltd. vs. MEDCHL Chemicals & Pharma (P) Ltd.* and *Ram Chander Prasad Sharma v. State of Bihar*, to support the position that a Power of Attorney holder can initiate criminal proceedings on behalf of the principal. 3. Examination of the Complainant under Section 200 of the Code of Criminal Procedure (Cr.PC): The High Court had also found irregularity in the fact that the sworn statement before the Magistrate was given by the attorney holder and not by the payee in person. The Supreme Court clarified that Section 200 of the Cr.PC aims to ensure the existence of a prima facie case and to prevent harassment by false complaints. The Court held that if the attorney holder has personal knowledge of the transaction and the complaint is signed by him on behalf of the payee, he can be examined under Section 200. The Court referred to *Janki Vashdeo Bhojwani v. Indusind Bank Ltd.*, which discussed the scope of an attorney holder acting on behalf of the principal in civil suits, and applied the same principle to cases under Section 138 of the Act. Conclusion: The Supreme Court allowed the appeal, set aside the High Court's order, and directed the learned Magistrate to proceed with the complaint. The Court affirmed that a complaint under Section 138 of the Negotiable Instruments Act, 1881, signed by a Power of Attorney holder, is maintainable, provided it is made in the name of the payee and in writing. The decision underscores the validity of legal actions initiated by Power of Attorney holders on behalf of proprietary concerns and clarifies the procedural aspects under Section 200 of the Cr.PC.
|
