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TMI Blog2021 (7) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... ake effect. This Court is of the opinion that there is no reason to dismiss the complaint or to allow the revision setting aside the order taking cognizance and issuance of processes by the learned Magistrate. This Court is of the opinion that in the present cases the company has been duly authorized an authorized person. If the accused arrayed in this cases wants to disputes those facts and statements, the said issues may be raised at the time of trial of the cases and opportunities should be given to the complainant to show before the learned Magistrate that in fact, the company made a Resolution to authorize Mr. Ratnakar Nayak to file the complaint on behalf of the company and if necessary examine the Managing Director or any of the Directors of the company. On a careful conspectus of the entire material on record as well as the law governing the field, this Court is of the opinion that the cognizance taken by the learned SDJM, Panposh cannot be quashed or set aside because of non-compliance of the provisions of the Companies Act, 1961 or for deficit court fees or for lack of jurisdiction. However, all these complaints filed before the SDJM, Panposh are allowed to be wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows: It is submitted that in the complaint petition, no where it is mentioned that the Deputy In-charge or the Senior Clerk has been authorized to file the complaint case on behalf of opposite party- M/s. Agarwal Fuel Corporation (P) Ltd.-company about the transaction in question. It is also submitted that in case a petition is filed by the company, the same can be done through its Director or Principal Officer by a Resolution passed by the Board of Directors of the company in exercise of its statutory power under Section 291 of the Companies Act, 1961. However, in the present cases, opposite parties i.e. the Deputy In-charge, Principal Officer or Senior Clerk of the Company has no statutory power under Section 291 of the aforesaid Act nor they have been authorized by the Board of Directors of the Company to file a complaint case against the petitioners. It is further submitted that Section 142 of the N.I. Act, 1881 contains a non-obstante clause prohibiting the court to take cognizance of offence in case of complaint under Section 138 of the said Act, if the complaint petition is not filed by the payee or the holder of the cheque. It is further stated that Section 2(10) read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant has specifically averred as follow: That the complainant is a private limited company, registered under the Companies Act, 1956 in the name style of Agarwal Fuel Corporation Private Limited, known as Eagle Fuel Private Ltd, having its branch office at Rourkela, in the address noted above. The complainant s company as per the resolution passed by the Board of Directors authorized to Sri Ratnakar Nayak, Deputy In-charge to file the case against the accused nos. 1 and 2. The learned counsel for the opposite parties relies on the following cases of Vishwa Mitter of Vijay Bharat Cigarette Stores, Dalhousie Road, Pathankot vrs. O.P. Poddar and others, (1983) 4 SCC 701, National Small Industries Corporation Ltd. vrs. State (NCT of Delhi) and others, (2009) 1 SCC 407, A.C. Narayanan vrs. State of Maharastra and another, 2013 (II) OLR (SC) 884, M.M.T.C. Ltd. and another vs. Medchl Chemicals Pharma (P) Ltd. and another, (2002) 1 SCC 234 and The Associated Cement Co. Ltd. vs. Keshvanand, (1998) 1 SCC 687. In the case of Vishwa Mitter of Vijay Bharat Cigarette Stores, Dalhousie Road, Pathankot (supra), the Hon ble Apex Court, at paragraph-5, has held as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant and the witnesses present and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses. The requirement of section 142 of NI Act that payee should be the complainant, is met if the complaint is in the name of the payee. If the payee is a company, necessarily the complaint should be filed in the name of the company. Section 142 of NI Act does not specify who should represent the company, if a company is the complainant. A company can be represented by an employee or even by a non-employee authorized and empowered to represent the company either by a resolution or by a power of attorney . (underlined to emphasize) In the case of A.C. Narayanan (supra), the Hon ble Apex Court at paragraphs 20 and 24 has held as follows: 20. The stand of the appellant in Criminal Appeal No. 73 of 2007 is that no complaint can be filed and no cognizance of the complaint can be taken if the complaint is by the power of attorney holder, since it is against Section 200 of the Code and deserves to be rejected. There is no dispute that complaint has to be filed by the complainant as contemplated by Section 200 of the Code, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end of the proceedings. There e may be occasions when a different person can represent the company e.g. the particular person who represents the company at the first instance may either retire for, the company's service or may otherwise cease to associate therewith or he would be transferred to a distant place. In such cases it would be practically difficult for the company to continue to make the same person represent the company in the court. In any such eventuality 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. At any rate for those reasons we are not persuaded to uphold the contention that Section 247 of the old Code (or Section 256 of the new Code) is not applicable in a case where the complainant is a company or any other justice person. In support of his contention and the citations relied upon, the learned counsel for the petitioners raises the ground that the learned SDJM, Panposh failed to appreciate that in order to make the petitioner and accused in the proceeding, it is necessary that the liability under Section 141 of the Negotiable Instruments Act, 1881 be pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven any reply nor have paid the cheques amount to the Complainant till date. 8. In support of his contentions, learned counsel for the opposite parties relies upon the authoritative pronouncements made by the Hon ble Supreme Court in the following cases: A.K. Singhania vs. Gujarat State Fertilizer Co. and another, AIR 2014 SC 71, Gunmala Sales Private Ltd. vs. Anu Mehta and others, (2014) 59 OCR (SC) 1039, Munshi Abdul Maheraj Ali vs. M/s S.S. Marketing, (2015) 60 OCR 172, Rajendra Kumar Sahoo vs. Ramakanta Sahoo, (2015) 60 OCR 206, M. Sreenivasulu Reddy vs. K.S. Raghava Reddy, 2003 Cr.L.J. 4005. In the case of Associated Cement Co. Ltd., (supra), as noted earlier, it has been held by the Hon ble Apex Court that: the complainant has to be a corporeal person who is capable of making a physical appearance in the court. It has been held that if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court. It is held that the court looks upon the natural person to be the complainant for all practical purposes. It is held that when the complainant is a body ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It appears plausible at least for the present purpose, for no application has ever been filed before any court seeking permission to file additional evidence, excepting what is filed in this Court for the first time. 3. Having heard both sides we find it difficult to support the orders challenged before us. A company can file a complaint only through human agency. The person who presented the complaint on behalf of the Company claimed that he is the authorised representative of the Company. Prima facie, the trial court should have accepted it at the time when a complaint was presented. If it is a matter of evidence when the accused disputed the authority of the said individual to present the complaint, opportunity should have been given to the complainant to prove the same, but that opportunity need be given only when the trial commences. The dismissal of the complaint at the threshold on the premise that the individual has not produced certified copy of the resolution appears to be too hasty an action. We, therefore, set aside the impugned orders and direct the trial court to proceed with the trial and dispose of it in accordance with law. xxx 9. In applying the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Board of Directors of the company to file the case and that he is competent to swear affidavit on behalf of the company. He further swears to the fact that the averments made in Paragraphs 1 to 9 of the complaint petition are true to the best of his knowledge and belief. The complaint petition has been annexed with a letter addressed to Sri Ratnakar Nayak, the employee, who has signed the complaint petition and sworn the affidavit on behalf of the company by Mr. Vinod K Agarwal, Director of the company that as per the Board of Directors Resolution dated 07.07.2012, Sri Nayak has been authorized to consult lawyers and take necessary steps to file case/cases. So, it is apparent from the record that in these cases, the complaint has been filed by an employee of the company, he was duly authorized by a Resolution of the Board of Directors (as there is nothing on record to disbelieve this document on the face of it), and that the complaint has been made in the name of the company. 11. Two other contentions raised by the learned counsel for the petitioners, namely, Mr. Udgata with respect to the court fees and jurisdiction of the learned SDJM, Panposh. It is contended that, as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding a reasonable opportunity to the petitioner, complainant or the plaintiff to make good deficit court fees. This Court is of the opinion that even at the final hearing of the proceeding, if it is found that insufficient court fees has been paid, the judgment can be pronounced directing the petitioner or complainant to pay the deficit court fees, lest the final order shall not take effect. In that view of the matter, this Court is of the opinion that there is no reason to dismiss the complaint or to allow the revision setting aside the order taking cognizance and issuance of processes by the learned Magistrate. 13. The other issue is relating to jurisdiction. There is no dispute that the cheques were drawn on the Oriental Bank of Commerce, Barbil Branch in the district of Keonjhar. It was presented in the UCo Bank, Bazar Branch, Rourkela, but the cheques were forwarded for clearance to the Barbil Branch of Oriental Bank of Commerce. Thus, as per the ratio decided by the Hon ble Apex Court in the case of Dashrath Rupsingh Rathod vs. State of Maharashtra and another, (2014) 9 SCCs 129 , the learned JMFC, Barbil has the jurisdiction to take cognizance of the offence and try th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that it is expedient to direct that only those cases where, post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will continue to proceed at that place. To clarify, the Hon ble Apex Court further held, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of complaint cases where proceeding have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by Supreme Court from the court ordinarily possessing territorial jurisdiction, as now clarified, to the court where the cases presently pending. The Supreme Court further held that all the complaints (obviously including those where the respondent-accused has not been properly served) shall be returned to the complainant for filing in the proper court, in consonance with the exposition of the law propounded by the Hon ble Supreme Court in the said judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaint only through one of its principal officer. I am aware of the provision of Rule-1 of Order XXIX of the Code of Civil Procedure, 1806, which provides that in a suit by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation, who is able to depose to the facts of the case. No such provision appears either in the N.I. Act or in the Companies Act or in the Code of Criminal Procedure. So, any person, who is duly authorized by the Board of Director in terms of Section 291 of the Companies Act and who is able to depose to the facts of the case, can present the complaint before the competent court. 15.2 Another contention is raised that there is a spelling difference in the name of the company i.e. complaint-company. But, I am of the opinion that it may be only a spelling mistake and is of no substance. 16. Mr. Sanjeev Udgata, learned counsel for the petitioners relied upon the case of L.P. Electronics (Orissa) Pvt. Ltd. and others vs. Tirupati Electro Marketing Pvt. Ltd., 2013(II) OLR 318 and the judgment delivered by this Court in the case of M/s SM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be filed before the learned JMFC, Barbil within the period of limitation as prescribed from the date of such withdrawal. The learned SDJM, Panposh shall make an endorsement on each of the complaints filed before him to that effect and allow the complainant to present it before the learned JMFC, Barbil. It is needless to say that no question has been raised regarding the question of limitation. In other words, it is not disputed by the accused-petitioners that the complaint is filed after the lapse of the prescribed period of limitation. To obviate further dispute or controversy, the complainant, while re-presenting complaint before the JMFC, Barbil, if so advised, may file a copy of resolution(s) of the Board of Directors of the Company authorizing the appropriate person to file the complaints. 20. With the aforesaid observations, all the Criminal Revisions are disposed of. 21. The Trial Court Records bearing I.C.C. No.579/2012 be sent back to the learned SDJM, Panposh immediately by the Registry. 22. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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