9911796707
TMI Blog2025 (1) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has quashed the summoning order on a categorical finding that the power of attorney holder did not have personal knowledge of the facts giving rise to the criminal proceedings as there was no specific pleading to that effect in the letter of authority and the affidavit of the power of attorney holder under Section 200 of the Cr.P.C., we find it apposite to reproduce the relevant portions of the aforesaid documents which contain averments regarding authorisation in favour of and knowledge on the part of Sh. Neeraj Kumar. This Court in M/S TRL KROSAKI REFRACTORIES LTD. VERSUS M/S SMS ASIA PRIVATE LIMITED ANR. [ 2022 (2) TMI 1112 - SUPREME COURT] had come to a categorical finding that what can be treated as an explicit averment, cannot be put in a straightjacket but will have to be gathered from the circumstance and manner in which it has been averred and conveyed, based on the facts of each case. The relevant portion of the said decision has already been extracted above. In the instant matter, the averments made in the documents referred to above, make it wholly clear that Sh. Neeraj Kumar possessed personal knowledge of the facts of the matter at hand and was well-equipped an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 640670725 belonging to M/s Aarti Industries at the Central Bank of India, Branch Khurja. 3.4. Upon receiving the said cheque, the appellant deposited it in its A/c No. 07382560000285 at HDFC Bank, Branch Khurja on 12th July 2021 for encashment. However, the cheque came to be dishonoured and on 13th July 2021, the cheque was returned to the appellant with a return memo which stated that the cheque amount exceeds arrangement . 3.5. Aggrieved thereby, on behalf of Smt. Shakti Khanna, the owner/proprietor of the appellant-firm, a legal notice dated 15th July 2021 was issued to Respondent No.1 through its sole proprietor, Sunita Devi under the NI Act. According to the legal notice, Respondent No.1 was to pay the cheque amount of Rs. 1,70,46,314/- within a period of 15 days of receiving the notice, failing which the offence punishable under Section 138 of the NI Act was liable to be attracted. 3.6. Immediately thereafter, on 16th July 2021, as a counter blast to the legal notice, Angad the son of the sole proprietor of Respondent No.1 lodged a First Information Report under Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860 against 7 accused persons. It was alleged that Ashish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscellaneous Application under Section 482 of the Cr.P.C. to quash the aforesaid summoning order as well as the entire proceedings of the complaint case pending before the trial court. 3.12. The High Court by the impugned judgment and order allowed the Criminal Miscellaneous Application. 3.13. Being aggrieved thereby, the present appeal. 4. We have heard Mr. Navin Pahwa, learned Senior Counsel, appearing on behalf of the appellant and Mr. Shailesh Sharma, learned counsel, appearing on behalf of Respondent No.2. 5. In spite of being duly served, none appeared for Respondent No.1. 6. Mr. Navin Pahwa, learned Senior Counsel, submitted that the High Court had quashed the complaint case on an incorrect assumption of fact as well as an incorrect interpretation of the law laid down by this Court in TRL Krosaki Refractories Limited v. SMS Asia Private Limited and Another (2022) 7 SCC 612 : 2022 INSC 214 . 7. Mr. Navin Pahwa further submitted that the High Court had quashed the criminal case on the simple ground that from a conjoint reading of the averments made in the Letter of Authority and the affidavit of evidence under Section 200 of the Cr.P.C. , Sh. Neeraj Kumar, the power of attorne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 190 of the Cr.P.C., a Magistrate is empowered to take cognizance of an offence upon receiving a complaint of facts which constitute such offence. Prior to taking such cognizance, in accordance with and as provided by Section 200 of the Cr.P.C., the Magistrate is required to examine upon oath the complainant and witness present, if any. However, Section 142 of the NI Act creates a legal bar on the court from taking cognizance of any offence punishable under Section 138 of the NI Act except upon a complaint, in writing, made by the payee, or as the case may be, the holder in due course of the cheque. 14. The law on the subject-matter at hand is no longer res integra and has been well-settled by a series of judgments passed by this Court. 15. This Court in the case of National Small Industries Corporation Limited v. State (NCT of Delhi) and Others (2009) 1 SCC 407 : 2008 INSC 1308 had an occasion to consider the validity of a complaint under Section 138 of the NI Act and the satisfaction of the requirement under Section 142 thereof, as well as to determine as to who could be considered to be the complainant/representative in a case where the complaint is to be filed by an inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption available against examining a public servant in view of Section 200(a) of the Cr.P.C., this Court nevertheless clarified that the requirement of Section 142 of the NI Act that the payee should be the complainant would be met if the complaint is in the name of the payee. Where the payee is a company, this Court observed that the complaint should necessarily be filed in the name of the company, if the company is the complainant. In such cases, this Court held that a company can be represented by an employee or even a non-employee authorised and empowered to represent the company either by a resolution or by a power of attorney. As a consequence of the aforesaid discussion, this Court concluded that for the purposes of Section 142 of the NI Act, the company will be the complainant and for the purposes of Section 200 of the Cr.P.C., its employee who represents the company, will be the de facto complainant while the company will remain the de jure complainant, regardless of any change in the de facto complainant. 17. Having discussed as to who could file a complaint on behalf of an incorporated body, it would be apposite to consider the legal validity of a complaint by the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the payee is a proprietary concern, the complaint can be filed by the proprietor of the proprietary concern, describing himself as the sole proprietor of the payee, the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor, and the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor. However, we make it clear that the power-of-attorney holder cannot file a complaint in his own name as if he was the complainant. In other words, he can initiate criminal proceedings on behalf of the principal. 29. From a conjoint reading of Sections 138, 142 and 145 of the NI Act as well as Section 200 of the Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain present and to examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaint under Section 138 of the NI Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the NI Act. 33.5. The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person. 34. We answer the reference on the above terms and remit the matter to the appropriate Bench for deciding the case on merits. ( emphasis supplied ) 18. This Court while answering the reference has thoroughly considered the scope and requirement of Section 142(1)(a) of the NI Act. This Court held that from a conjoint reading of Sections 138, 142 and 145 of the NI Act as well as Section 200 of the Cr.P.C., it is clear that calling upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant to support his complaint, is a matter of discretion on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action, nor had he witnessed the same, nor was there any averment in the complaint that the complainant had been duly authorized by the payee-firm to initiate criminal proceedings on its behalf. The High Court had allowed the petition under Section 482 of the Cr.P.C. and set aside the summoning order, which led to an appeal being filed before this Court. A three-Judge Bench of this Court upon a thorough consideration of the judgments of this Court by which the law on the subject-matter at hand has been crystallised, allowed the appeal and set aside the judgment of the High Court. This Court held as follows: 21. A meaningful reading of the above would indicate that the company having authorised the General Manager (Accounting) and the General Manager (Accounting) having personal knowledge had in fact been clearly averred. What can be treated 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p. 456, para 3) 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. Parties are directed to appear before the trial court on 31-1-2000. 25. 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 the NI Act, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the complaint filed by the appellant. ( emphasis supplied ) 21. It could thus be seen that this Court distinguished the position of a complainant filing a complaint on behalf of an individual from the position of a complainant filing a complaint on behalf of a company. This Court clarified that although the decision in the case of A.C. Narayanan (supra) had taken centre stage, the facts involved in that case were in the background that the complaint filed was based on the power of attorney issued by the payee who was also an individual. In such cases, the manner in which the power was being exercised had to be explicitly stated. However, this Court clarified that the position that would emerge when the complainant is a company or a corporate entity will have to be viewed from a different standpoint. This Court held that when the company is the payee of the cheque based on which a complaint is filed under Section 138 of the NI Act, the complainant should necessarily be the company which is to be represented by an authorised employee and in such a situation, the indication in the complaint and the sworn statement, oral or by affidavit, to the effect that complainant is represented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint was totally silent as to any such personal knowledge. 26. A perusal of the complaint (Annexure P-18) would reveal that Complaint No. 701 of 2021 has been filed in the name of M/s Naresh Potteries through Neeraj Kumar (Manager and Authority-letter holder). Further, a perusal of the cheque which is the subject-matter of the complaint would reveal that it has been issued in the name of Naresh Potteries. As aforementioned, Section 142 of the NI Act contemplates that the complaint filed under Section 138 of the NI Act should be in writing and should be filed by the payee or the holder of the cheque. Therefore, it is abundantly clear that the complaint in the present matter satisfies the requirements of Section 142 of the NI Act. 27. Further, a cumulative study of the relevant material being the Letter of Authority (Annexure P-9), the affidavit in support of the complaint (Annexure P-10) and the affidavit of evidence under Section 200 of the Cr.P.C. (Annexure P-11) would reveal that Sh. Neeraj Kumar, the power of attorney holder being the manager of the appellant-firm and the caretaker of its day-to-day business, was well-conversant with the transactions which led to the issuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is posted as manager in complainant firm M/s. Naresh Potteries, GT Road, Khurja and holds authority letter of the firm issued by the owner Smt. Shakti Khanna and is well conversant with the facts and circumstance of the case. Thus, deponent is competent to file this affidavit. 32. A conjoint reading of the above would make it clear that it had been categorically averred that the sole proprietor of the appellant-firm had duly authorized Sh. Neeraj Kumar to act on its behalf in view of the fact that Sh. Neeraj Kumar was incharge of the day-to-day affairs of the appellant-firm and as such had personal knowledge of the facts of the matter. 33. As referred to above, this Court in TRL Krosaki Refractories Limited (supra) had come to a categorical finding that what can be treated as an explicit averment, cannot be put in a straightjacket but will have to be gathered from the circumstance and manner in which it has been averred and conveyed, based on the facts of each case. The relevant portion of the said decision has already been extracted above. In the instant matter, the averments made in the documents referred to above, make it wholly clear that Sh. Neeraj Kumar possessed personal kno ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
