2014 (9) TMI 1118 - HC - Indian Laws

Offence under Section 138 of NI Act - complaints have been filed by the complainant Company or by the Attorney - complaint explicitly asserting the knowledge of the Attorney regarding the transaction stated in the complaint - Held that - Merely because complaint is signed and presented by a person, who is neither an authorized agent nor a person empowered under the Articles of Association or by any resolution of the Board to do so, is no ground to quash the complaint. It is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the Court. Even if initially, there was no authority, still the company can, at any stage, rectify that defect and at a subsequent stage can send a person who is competent to represent the company. In the present case, the complaint is not filed by the Power of Attorney in his personal name, but has been filed by the Company i.e. Shri Mallikarjun Shipping Pvt. Ltd,. The same, however, has been filed through the authorized representative i.e. the Attorney Mr. Bhushan Honavarkar. It is true that in the complaint, there is no averment at all to the effect that the said attorney has knowledge about the transaction in question. However, he has produced on record the extract true copy of the minutes wherein a resolution was passed on 27/10/2012 authorizing said Shri Bhushan Honavarkar to file complaint and do all other acts on behalf of the Company. It is true that the original resolution has not been produced on record and what has been produced is a extract true copy issued by one of the directors of the complainant Company. In the affidavit filed by Shri Bhushan Honavarkar, he has specifically stated that he is duly authorized representative of the complainant and that the complainant Company is duly represented by him vide resolution passed in the meeting held on 27/02/2012. In the said affidavit, he has specifically narrated all the facts as required for issuance of process and he has stated that all the said facts are true to the best of his knowledge and belief. In such circumstances, merely because there is no averment in the complaint to the effect that said Shri Bhushan Honavarkar has personal knowledge of the transaction, that may not be sufficient to dismiss the complaint at this stage. The point that the Attorney, namely Bhushan Honavarkar could not have filed the complaint on behalf of the complainant Company and could not have verified the same was not at all raised before the learned Additional Sessions Judge, South Goa, Margao before whom the petitioners had filed Criminal Revision Applications No. 74/2013 and 85/2013, against the issuance of process. In view of the discussion supra the orders dated 07/01/2013 passed by the learned J.M.F.C. at Mapusa thereby issuing process against the petitioner under Section 138 of the Act, in both the cases, and the orders dated 18/10/2013, passed by the Appellate court in Criminal Revision Applications No. 74/2013 and 85/2013, cannot be quashed at this stage and the complaints are not liable to be quashed.

Summary

Issues Involved
1. Validity of the issuance of process under Section 138 of the Negotiable Instruments Act, 1881.
2. Authority of the complainant's representative to file the complaint.
3. Compliance with procedural requirements under Section 200 of the Criminal Procedure Code (Cr.P.C.).

Detailed Analysis

Validity of the Issuance of Process under Section 138 of the Negotiable Instruments Act, 1881
The petitioners challenged the order dated 07/01/2013 by the Judicial Magistrate, First Class at Mapusa, directing issuance of process against them under Section 138 of the Negotiable Instruments Act, 1881, and the subsequent order dated 18/10/2013 by the Additional Sessions Judge, Margao, which dismissed their Criminal Revision Applications. The court found that the complaints, along with the documents provided, prima facie established the ingredients of the offense under Section 138 of the Act, thereby justifying the issuance of process.

Authority of the Complainant's Representative to File the Complaint
The petitioners argued that the complaints were signed by Shri Bhushan Honavarkar, who was named as the authorized signatory without the production of an original resolution appointing him as such. The court noted that the complaints were filed by the complainant Company, represented by its authorized representative, Mr. Bhushan Honavarkar. The court referred to the case of "M/s. MMTC Ltd. and another Vs. M/s. Medchl Chemicals and Pharma (P) Ltd and another," which held that a company can rectify any defect in the authorization at any stage and send a competent person to represent it. The court found that the extract of the minutes authorizing Honavarkar was sufficient for the stage of issuing process, and any defects could be rectified later.

Compliance with Procedural Requirements under Section 200 of the Cr.P.C.
The petitioners contended that there was no averment in the complaint explicitly asserting the knowledge of the Attorney regarding the transaction. The court referred to the judgment in "A. C. Narayanan Vs. State of Maharashtra and another," which clarified that a Power of Attorney holder can file and verify a complaint if they possess due knowledge of the transaction. The court found that although the original resolution was not produced, the affidavit by Honavarkar, stating his authorization and knowledge, was sufficient for the issuance of process. The court also noted that procedural defects, if any, could be rectified, and the complaints could not be quashed on this ground alone.

Conclusion
The court concluded that the orders dated 07/01/2013 by the Judicial Magistrate and 18/10/2013 by the Additional Sessions Judge were valid and could not be quashed at this stage. The complaints were found to be maintainable, and the petitions were dismissed. The parties were directed to appear before the trial Magistrate on 29/09/2014.