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TMI Blog2013 (9) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... e complainant had issued a notice seeking prompt payment. It transpires that a part payment was made in cash and the respondent had issued a cheque for the balance amount of ₹ 65,294 in discharge of the amount outstanding. The cheque when presented for collection was dishonoured for want of funds. When the respondent was informed of the same, he had requested for time to pay the amount and ultimately issued a cheque endorsed in blank with instructions to the appellant to present the same for collection in the third week of February, with due information to the respondent. Therefore, the same was presented as per the instructions of the respondent while indicating the date of the cheque as 22.2.2006 and presented the same through the appellant 's banker and the same was dishonoured. Therefore, a notice was issued in terms of Section 138 of the N.I. Act within the time prescribed and since there was non -compliance with the demand, a complaint was filed. The same was contested. One of the objections raised was that the complaint was not brought be an authorized person to represent the company and therefore the complaint could not be entertained apart from raising contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , may be either its manager, partner, managing partner or director or any other person authorised by the company, who can represent it during the course of legal proceedings before the Court. Only by making such a construction and interpretation of the provisions of the aforesaid sections the provisions of the Act can be made to work and life thereby given, having teeth 'for the enforcement of the provision or any other interpretation given would have the effect of making no sense of those, provisions, and will be only in the sense of defeating the very object for which the provisions had been enacted by the Legislature ''. In Sagayadurai and Others v. J.D. Electronics, the view expressed in Gopalakrishna's case was followed. In Swadharma Swarajya Sangha v. Indian Commerce and Industries Company Private Limited, a Division Bench of the Madras High Court, however, has taken a view that a suit filed, without there being any resolution by the Board of Directors, was not filed by an authorised person and was not maintainable. In Shakthi Concrete Industries Limited and Others v. Valuable Steels (Tndia) Limited4, a Single Judge of the Madras High Court has reaffirmed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9: On the basis of Section 141 of the Act though it contemplates a case in which company is an accused, on the basis of the same analogy, even in the case of company being the complainant, it can be inferred that the person who can file a complaint on behalf of the company would be a person who is in charge of, or was responsible to, the company. In other words, he must be a person whose actions would be binding on the company; '' Incidentally, the decisions of the Andhra Pradesh High Court to the contrary in Satish and Company v. S.R. Traders and Swastik Coaters Private Limited v. Deepak Brothers, has not been followed and it is declared in the above decision of the Madras High Court that the said decisions do not lay down the correct law. In Medchl Chemicals and Pharmaceuticals Private Limited and Others v. Minerals and Metals Trading Corporation Limited, the very High Court has however taken a divergent view ignoring its earlier decisions and following the opinions expressed by other High Courts and the Supreme Court thus: ''26. It will be appropriate to refer to some of the rulings on this point, so that in the background of law enunciated in those rulings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has held in the ruling reported in VishwaMitter v. O.P. Poddar and Others, : 1984 Cri. L.J. 1 (SC), that it is thus crystal clear that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance under Section 190 and unless any statutory, provision prescribes any special qualification or eligibility criteria for putting the criminal law in motion, no Court shall take cognizance of the sole ground that the complainant was not competent to file the complaint. The Patna High Court has held in the decision in BOC India Limited v. Zinc Products and Company Private Limited, (1996)86 Comp. Cas. 358 (Pat.) that since the board of directors of the petitioner - Company had not passed a resolution authorising the area sales manager to institute a petition for winding up the respondent -Company, the petition filed by him is not maintainable. 30. The Delhi High Court has held in the decision in Nibro Limited v National Insurance Company Limited, (1991)70 Compocas 388 (Del.) '' ...that the powers of a company in respect of a particular matter are to be exercised by the company in general meeting, in al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company being a juristic person, any person on behalf of the company would have to be authorised by the company in the Articles of Association or by a separate resolution to depose on behalf of the company. Section 142 of the N.I. Act lays down that no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. If the payee is a corporate body or a company incorporated under the Companies Act, 1956 in terms of Section 291 of the Companies Act, 1956, it is the Board of Directors who are entitled to exercise all powers as the company is authorised to exercise and do. Thus, a company, though a legal entity, can act only through its board of Directors (See: National Small Industries Corporation Limited v. Harmeet Singh paintal and Another) Under Section 291 of the Companies Act, except where express provision is made, that the powers of a company in respect of a particular matter, are to be exercised by the company in a general meeting. The individual directors have such powers only as are vested in them by the Memorandum and Articles of Association. The qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter referred to as the 'Cr. P.C ', for brevity). The learned Single Judge of the High Court had also dismissed the petition, though a copy of the resolution, showing that the company had authorised a particular individual to present the complaint before the Court, was produced; on the ground that it was a matter of grave doubt as to such a resolution would ensure to the benefit of the petitioner as it was not a civil suit, but a criminal prosecution and authorisation to prosecute being in the nature of sanction, the Board of Directors of a Company are required to apply their mind to the facts and circumstances before authorising any person to prosecute any other for any offence and since such a document was being produced for the first time before the High Court. The Apex Court however held that a company can file a complaint only through human agency. The person who presented the complaint on behalf of a company having claimed that he was an authorised representative of the company prima facie the Trial Court should have accepted it at the time when the complaint was presented. If it is a matter of evidence, when the accused disputed the authority of the said individual t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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