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2018 (9) TMI 667 - HC - Indian LawsDishonor of Cheque due to insufficiency of funds - Offence under Section 138 of the Negotiable Instrument Act - Maintainability of Complaint - Jurisdiction - delegation of power - Managing Director has given powers to the Accounts Manager to file the present complaint. Held that - In the present case on hand, the power delegated to its Managing Director by its Board of resolution has been sub-delegated to the Accounts Manager of the company through the power of attorney to file complaint on behalf of the company - It is clear that in the case on hand, the Managing Director has given powers to the Accounts Manager to file the present complaint. The Managing Director is the delegate of the Board of Directors and he is nothing but a delegate and as per the Board resolution, he cannot delegate his power or duty in favour of the Accounts Manager. Therefore, the present complaint is not legally maintainable. Also, it is clear that the accused were not partners of the said firm and as such, they are not liable to be prosecuted on behalf of the partnership firm of S.S.Agency. The relief sought for in the petitioiner can very well be maintained by exercising the inherent jurisdiction of this Court under Section 482 of Cr.P.C. Though it is not proper for this Court to consider the defence of the accused or conduct a roving enquiry in respect of merits of the accusation, but if on the face of the document which is beyond suspicion or doubt, placed on record by the accused and if it is considered that the acusation against the petitiners cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on this Court to look into those documents, which have a bearing on the matter even at the initial stage and grant relief to the persons concerned by exercising jurisdiction under Section 482 of Cr.P.C. Petition allowed.
Issues Involved:
1. Validity of the delegation of power to file the complaint. 2. Status of the accused as partners of the firm at the time of the transaction. 3. Non-impleading of the partnership firm as an accused. 4. Competence of the complainant to maintain the complaint. Detailed Analysis: 1. Validity of the Delegation of Power to File the Complaint: The complaint was filed by Mr. S. Palanivel, the Accounts Manager of the complainant company, based on a power of attorney granted by Mr. N. Krishnasamy, the Managing Director. The Board of Directors had initially delegated the authority to file complaints to Mr. Krishnasamy, who then sub-delegated this power to Mr. Palanivel. The court referred to the legal maxim "Delegata potestas non potest delegari," which means a delegate cannot further delegate his powers without express authority. The court cited a previous judgment (Criminal Appeal No. 1389 of 2003) which held that such sub-delegation is not permissible. Therefore, the court concluded that the complaint was not legally maintainable due to improper delegation of authority. 2. Status of the Accused as Partners of the Firm at the Time of the Transaction: The petitioners argued that they had executed a release deed on 01.04.2008, relinquishing their rights and liabilities in the firm, effective from 31.03.2008. They also submitted Form V under the Indian Partnership Act, 1932, to the Registrar of Firms, which was registered on 28.04.2008. The court noted that the goods were supplied from 03.04.2009 to 14.09.2009, and the cheque was issued on 21.10.2009. Since the accused were not partners at the time of the transaction and issuance of the cheque, they could not be held liable. 3. Non-impleading of the Partnership Firm as an Accused: The petitioners contended that the complainant failed to implead the partnership firm as an accused, which is necessary for prosecuting partners under Section 138 of the Negotiable Instruments Act. The court agreed, noting that the firm itself was not made an accused, and only the partners were named in the complaint. This omission was deemed fatal to the complainant's case. 4. Competence of the Complainant to Maintain the Complaint: The complainant company had delegated its power to file complaints to its Managing Director through a Board resolution, who then sub-delegated this power to the Accounts Manager. The court found this sub-delegation invalid, as discussed earlier. Additionally, the court noted that the complainant company was aware of the accused's retirement from the partnership, as evidenced by their submission of Form V. Despite this, the complainant proceeded with the case, which further questioned the competence and bona fides of the complaint. Conclusion: The court allowed the criminal original petition and quashed the criminal proceedings in C.C.No.49 of 2010 on the file of the Judicial Magistrate No.1, Dindigul. The court emphasized that the accused were not partners at the relevant time, the complaint was not maintainable due to improper delegation of authority, and the non-impleading of the partnership firm was a significant procedural lapse. Consequently, the connected miscellaneous petition was also closed.
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