2013 (6) TMI 900 - HC - Indian Laws

Summary

Issues Involved:
1. Authorization of the Law Officer to represent the complainant-company.
2. Requirement of enquiry u/s 202, Cr.P.C. before issuing process.
3. Maintainability of the writ petition in light of previous CRLMC dismissal.

Summary:

1. Authorization of the Law Officer to represent the complainant-company:
The petitioners challenged the maintainability of the complaint case u/s 138 of the N.I. Act on the ground that the Law Officer, Sri Mahendra Kumar Pradhan, was not authorized by the Board of Directors u/s 291 of the Companies Act, 1956, to represent the company. The Court noted that no resolution or power of attorney was filed before the learned S.D.J.M. authorizing the Law Officer. The Court referenced previous judgments, emphasizing that the power to represent the company in litigation must be given by the Board of Directors through a resolution. The Court concluded that the complaint filed by the Law Officer without proper authorization was incompetent and not maintainable.

2. Requirement of enquiry u/s 202, Cr.P.C. before issuing process:
The petitioners argued that the learned S.D.J.M. issued process without conducting a mandatory enquiry u/s 202, Cr.P.C., as the accused resided beyond the jurisdiction of the Court. The Court highlighted the mandatory nature of the enquiry u/s 202, Cr.P.C., especially when the accused resides outside the jurisdiction. The Court found that the complaint case records did not show any enquiry being conducted, thus violating the mandatory provision, which vitiated the order taking cognizance and issuing process.

3. Maintainability of the writ petition in light of previous CRLMC dismissal:
The opposite party contended that the writ petition was not maintainable as the petitioners had previously filed a CRLMC No. 1977 of 2008, which was dismissed. However, the Court observed that the grounds and points urged in the present writ petition were not raised in the earlier CRLMC. Therefore, the dismissal of the earlier CRLMC did not bar the filing of the present writ petition.

Conclusion:
The Court allowed the writ petition, quashing the proceeding in ICC No. 847 of 2008 pending before the learned S.D.J.M., Bhubaneswar, due to the lack of proper authorization for the Law Officer to file the complaint and the failure to conduct a mandatory enquiry u/s 202, Cr.P.C.