9911796707
TMI Blog2005 (9) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... e to time. On 4-12-2002, petitioners issued a cheque bearing No. 603865 drawn on State Bank of India, Indore branch for ₹ 13,52,132/- in favour of the Resp. No. 1 for payment of the dues. Resp. No. 1 presented this cheque for collection through Cosmos Bank Ltd. Aurangabad. The cheque was dishonored and returned by the banker on 10-12-2002, as the payment was not arranged for. An intimation regarding dishonor of cheque was given to Resp. No. 1 on 13-12-2002. A notice was, therefore, issued to the petitioners. However, as the petitioners did not make payment, Resp. No. 1 filed a complaint in the court of Chief Judicial Magistrate, Aurangabad on 18-1-2003 against the petitioners through Power of Attorney holder Mr. Deelip Gandhi. Statement of power of attorney holder for, the purpose of verification of the complaint was recorded by Chief Judicial Magistrate on 17-3-2003. On being satisfied that there are sufficient grounds for proceeding learned Chief Judicial Magistrate issued process against the petitioners for offence punishable under Section 138 of the N.I. Act. 4. Petitioners appeared before the Court and filed application, Exh. 24 on 17-8-2003 praying for re-call of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standing anything contained in the Code of Criminal Procedure, 1973 (2) of 1974): - (a) 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; (b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138: Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section 138. It can be seen that Section 142 of N.I. Act excludes the provisions of the Code so far they it relate to taking of cognizance of the offence under Section 138 of N.I. Act. The conditions laid down by Section 142 for taking cognizance of offence punishable under Section 138 of N.I. Act are-1) that the complaint must be in writing; 2) It should be filed by the payee or the holder of the cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar view is taken by Kerala High Court in the matter of Hamsa v. Ibrahim. After referring to the ruling of the Apex Court in Ravulu Subbarao v. Income Tax Commissioner, it is observed in para 9 of the report that the principle enunciated in the said decision has no application to Section 142 of N.I. Act, since there is no requirement in it that the complaint should be made by the payee or holder in due course personally . In para No. 10 of the report, K.T. Thomas, J. (as his Lordship then was) has observed that it would not be in the interest of justice to construe the provisions as containing restrictions that the complaint should be made by the payee or holder in due course (as the case may be) personally and proceeded to hold that the power of attorney of a payee or holder in due course (as the case may be) can make a complaint under Section 142 of N.I. Act, Relying on this judgment, this Court took the similar view while dealing with the case of Dr. Pradip Mohanbay v. Mr. Minguel Carlos Dias. After referring to various authorities, it is observed in para 12 of the report that in so far as filing of complaint by power of attorney for offence under Section 138 of N.I. Act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payee or holder in due course is essential for the purpose of ascertaining truth of the facts mentioned in the complaint. In Ratish Rai v. Mohesh Singh, reported in, while dealing with the importance of the verification of complaint, Gauhati High Court took a view that the complaint being foundation of the entire proceedings, there should be a test of credibility by examining complainant on oath as regards facts of the complaint. In the matter of Corporation of Calcutta v. Calcutta Wholesale Consumers Co-operative Society Ltd., reported in AIR 1970 Cal 120 , the Court observed that a person not duly authorized, cannot maintained a complaint on behalf of the local authority or the Government. While dealing with the importance of verification of a complaint, this Court, in the matter of Vasant Waman Pradhan v. Dattatraya Vithal Salvi and Anr., reported in 2004 (1) Mah. LJ. 487 observed that examination of a complaint is not an Idle formality and has to be personally conducted by the Magistrate as the said examination enables him to decide whether process should be issued or not. In Gurudas Balkrishna v. Chief Judicial Magistrate, Panaji-Goa, reported in (1993) 95 BOML R60, while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties; (b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in makers connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts. 15. This court, in the case of Dr. Pradip Mohanbay (supra) made reference to ruling of Rajasthan High Court, reported in (Ramprasad v. Hari Narayan) quoting the following observations of Rajasthan High Court: A general power of attorney holder can appear, plead and act on behalf of the party, but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness-box on behalf of himself. To appear in a witness-box is altogether is a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff. Applying this principle to criminal law, this Court took a view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It is further held that the Magistrate shall not insist that particular person whose statement was taken on oath at the first instance alone can continue to represent the company till the end of the proceedings as the company can authorize different persons to appear before the Court at the different stages with the permission of the court. At this stage, reference can also be made to the decision of the Apex Court in the matter of M.M.T.C. Ltd and Anr. v. Medehi Chemicals and Pharma (P) Ltd and Anr., reported in 2002 CriLJ 266, wherein after referring to various decisions it is held that even if the corn-plaint is signed and presented by a person, who is neither authorized as an agent, nor a person empowered under the Articles of Association or by any resolution of the Board to do so will not be ground to quash the complaint. It is open to the de jure complainant to seek permission of the court for sending any other person to represent the company in the Court. Thus, even presuming, that initially there was no authority, still the company can at any stage rectify that defect. At the subsequent stage the company can send a person who is competent to represent the company. 17. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
