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TMI Blog2022 (2) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to Rs. 1,10,00,000/( Rupees one crore ten lakhs) in favour of the appellant company. On presentation, the said cheques were dishonoured by the Bank and returned with the endorsement, 'account closed'. The appellant in that view issued notices dated 14.04.2015 through registered post, acknowledgement due. Though the notices were received on 16.04.2015 as per the postal acknowledgement, the respondent failed to comply with the demand or respond to the same. In that view, the appellant filed the complaint before the learned Sub-Divisional Judicial Magistrate, ('SDJM' for short) Panposh, Uditnagar Rourkela under Section 138 and 142 of Negotiable Instruments Act, 1881 (for short 'N.I. Act'). The said complaint was registered based on the affidavit filed on behalf of the complainant, in lieu of oral sworn statement. The learned SDJM on being satisfied that there is sufficient material and the complaint under Section 138 of N.I. Act against the accused is in accordance with law, took cognizance of the complaint and directed summons to the respondent-accused, vide order dated 05.11.2015. 4. The respondent herein however filed a petition in CRLMC No.1210 of 2017 under Section 482 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Even in that context the High Court has not properly appreciated the facts involved in the instant case since the complaint was as per the observations made in A.C. Narayanan (supra). It is contended that the order passed by the learned SDJM dated 05.11.2015 taking cognizance would indicate that the learned Magistrate having perused the complaint and the entire record, was satisfied that there is sufficient material for issuance of summons. In that background, the list of documents and the documents are referred to. The agreement dated 18.07.2014, entered into between the appellant and respondent would disclose that Mr. Subhasis Kumar Das, General Manager (Accounting) who had represented the company in the complaint, was a witness to the said agreement. He had also signed the reconciliation statement and has despatched the notice to the respondent when the cheques were dishonoured. In that view, the company was represented by a competent person who had knowledge of the transaction. The verifying affidavit enclosed with the complaint also specified that he had knowledge and that the complaint was based on the relevant documents. In addition, the said Mr. Subhasis Kumar Das, General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the holder in due course of the cheque; (b) xxxxxxxxxx (c) xxxxxxxxxx" 8. In that background, a perusal of the complaint (Annexure P14) would disclose that the complainant named therein is M/s. TRL Krosaki Refractories Limited through its General Manager (Accounting) Subhasis Kumar Das. A perusal of the cheques (Annexures P3 to P9) which are the subject matter of the said complaint under Section 138 of NI Act would disclose that the "payee" named in the said cheques is M/s. TRL Krosaki Refractories Limited. If that be the position, the requirement as contemplated under Section 142 (1) (a) of NI Act that the complaint ought to be in writing and that it should be filed by the payee or the holder in due course, stands satisfied. The issue raised is that the complaint filed by Mr. Subhasis Kumar Das, General Manager (Accounting) on behalf of the company is not competent for want of authorisation and that there is no averment with regard to his knowledge about the transaction. On this aspect, strong reliance is placed by the learned counsel for the respondents on A.C. Narayanan (supra). Further, the judgment passed by the High Court is also entirely based on the guidelines lai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he questions for consideration as contained in para 21 of the judgment which read as hereunder: " 21. In terms of the reference order, the following questions have to be decided by this Bench: 21.1. Whether a power-of-attorney holder can sign and file a complaint petition on behalf of the complainant? /Whether the eligibility criteria prescribed by Section 142(a) of the NI Act would stand satisfied if the complaint petition itself is filed in the name of the payee or the holder in due course of the cheque? 21.2. Whether a power-of-attorney holder can be verified on oath under Section 200 of the Code? 21.3. Whether specific averments as to the knowledge of the power-of-attorney holder in the impugned transaction must be explicitly asserted in the complaint? 21.4. If the power-of-attorney holder fails to assert explicitly his knowledge in the complaint then can the power-of-attorney holder verify the complaint on oath on such presumption of knowledge? 21.5. Whether the proceedings contemplated under Section 200 of the Code can be dispensed with in the light of Section 145 of the NI Act which was introduced by an amendment in the year 2002?" The consideration made i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey holder cannot depose as a witness. Nevertheless, an explicit assertion as to the knowledge of the power-of-attorney holder about the transaction in question must be specified in the complaint. On this count, the fourth question becomes infructuous." The answer to the question raised for consideration is contained in para 33 which read as hereunder: 33. While holding that there is no serious conflict between the decisions in M.M.T.C. and Vashdeo Bhojwani, we clarify the position and answer the questions in the following manner: 33.1. Filing of complaint petition under Section 138 of the NI Act through power of attorney is perfectly legal and competent. 33.2. The power-of-attorney holder can depose and verify on oath before the court in order to prove the contents of the complaint. However, the power-of-attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions. 33.3. It is required by the complainant to make specific assertion as to the knowledge of the power-of-attorney holder in the said transaction explicitly in the complaint and the power-of-attorney holder who has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary and to the extent required, any of the powers delegated to him, to his subordinate officers. The above noted documents would disclose that the complaint under Section 138 NI Act was filed on behalf of the "payee" company with due authorisation. 12. The next aspect on which the High Court has interfered is on accepting the contention that there is no averment in the complaint as to whether the General Manager (Accounting) had any knowledge about the transaction or he was a witness to the transaction. On the said aspect it is noted that the transaction between the parties is based on the agreement dated 18.07.2014 (Annexure P1). The said document depicts, below the signature of the executives representing the appellant and the respondent company, a witness each from either side have appended their signatures. The witness on behalf of the appellant company is none other than Mr. Subhasis Kumar Das who was at that point in time, designated as General Manager (Commercial). Further, the document for reconciliation of account spanning the period from 01.04.2011 to 30.09.2014, as carried out on 28.10.2014, depicts that the same was attested by the representatives of both the companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an explicit averment, cannot be put in a straitjacket but will have to be gathered from the circumstance and the manner in which it has been averred and conveyed, based on the facts of each case. The manner in which a complaint is drafted may vary from case to case and would also depend on the skills of the person drafting the same which by itself, cannot defeat a substantive right. However, what is necessary to be taken note of is as to whether the contents as available in the pleading would convey the meaning to the effect that the person who has filed the complaint, is stated to be authorized and claims to have knowledge of the same. In addition, the supporting documents which were available on the record by themselves demonstrate the fact that an authorized person, being a witness to the transaction and having knowledge of the case had instituted the complaint on behalf of the "payee" company and therefore, the requirement of Section 142 of N.I. Act was satisfied. In Vinita S. Rao vs. Essen Corporate Services (P) Ltd. (2015) 1 SCC 527, to which one of us (Hon'ble CJI) was a member of the Bench has accepted the pleading of such a nature to indicate the power to prosecute the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi) and Ors. (2009) 1 SCC 407, this Court though was essentially considering the issue relating to the exemption available against examining a public servant keeping in view the scope under Section 200 (a) of Cr.PC, has exhaustively considered the validity of a complaint under Section 138 of N.I. Act and the satisfaction of the requirement under Section 142 thereof. In the said context this Court has held as hereunder: " 14. The term "complainant" is not defined under the Code. Section 142 of the NI Act requires a complaint under Section 138 of that Act to be made by the payee (or by the holder in due course). It is thus evident that in a complaint relating to dishonour of a cheque (which has not been endorsed by the payee in favour of anyone), it is the payee alone who can be the complainant. The NI Act only provides that dishonour of a cheque would be an offence and the manner of taking cognizance of offences punishable under Section 138 of that Act. However, the procedure relating to initiation of proceedings, trial and disposal of such complaints, is governed by the Code. Section 200 of the Code requires that the Magistrate, on taking cognizance of an offence on complaint, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion will remain the same but the de facto complainant (employee) representing such de jure complainant can change, from time to time. And if the de facto complainant is a public servant, the benefit of exemption under clause (a) of the proviso to Section 200 of the Code will be available, even though the complaint is made in the name of a company or corporation." (emphasis supplied) 17. In that view, the position that would emerge is that when a company is the payee of the cheque based on which a complaint is filed under Section 138 of N.I. Act, the complainant necessarily should be the Company which would be represented by an employee who is authorized. Primafacie, in such a situation the indication in the complaint and the sworn statement (either orally or by affidavit) to the effect that the complainant (Company) is represented by an authorized person who has knowledge, would be sufficient. The employment of the terms "specific assertion as to the knowledge of the power of attorney holder" and such assertion about knowledge should be "said explicitly" as stated in A.C. Narayanan (supra) cannot be understood to mean that the assertion should be in any particular manner, much ..... X X X X Extracts X X X X X X X X Extracts X X X X
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