2006 (8) TMI 695 - HC - Indian Laws

Criminal Complaint Quashed: Insufficient Allegations and Unauthorized Filing Under Negotiable Instruments Act.

O.P. Mehra Versus Raj Kumari Bhalla and Ors.

The court allowed the petition, quashing criminal complaint No. 115 of 1998, the summoning order, and all related proceedings against the petitioner. It ... - Issues Involved:1. Vicarious liability under Section 141 of the Negotiable Instruments Act.2. Validity of the complaint under Section 138 of the Negotiable Instruments Act filed by an unauthorized person.Issue-wise Detailed Analysis:1. Vicarious Liability under Section 141 of the Negotiable Instruments Act:The petitioner, a senior citizen and retired Air Chief Marshal, contended that he was unnecessarily impleaded as an accused in the complaint under Section 138 of the Negotiable Instruments Act. He argued that he was only a part-time Director of the company and was neither in charge of nor responsible for the conduct of its business, as required under Section 141 of the Act. The complaint merely stated that accused Nos. 2 to 9 were in charge of and responsible for the company's business without any specific allegations against the petitioner. The petitioner relied on Supreme Court decisions which held that mere incorporation of the magic words of Section 141(1) is insufficient for taking cognizance against a person on vicarious liability. There must be clear and specific allegations that the person was in overall control of the day-to-day business of the company. The affidavits from the Chairman-cum-Managing Director and Vice-President of the company supported the petitioner's claim that he was not involved in the day-to-day affairs of the company.The court held that the complaint lacked specific allegations that the petitioner was in overall control of the company's day-to-day business. The Judicial Magistrate had summoned the petitioner without sufficient material or clear allegations against him, which was a grave illegality. The court emphasized that at the time of taking cognizance and issuing process, the Magistrate must apply his mind to see if a case is made out against the accused. The summoning order must reflect this application of mind. The court concluded that the continuation of proceedings against the petitioner was an abuse of the process of law.2. Validity of the Complaint under Section 138 of the Negotiable Instruments Act Filed by an Unauthorized Person:The petitioner argued that the complaint was not filed by the payee or holder in due course of the bounced cheques, as required by Section 142(1) of the Act. Instead, it was filed by the complainant's husband, who was neither a general nor special power of attorney holder but acted based on an authority letter. The Supreme Court had held that a general or special power of attorney holder can file a complaint under Section 138 but cannot become a witness. The authority letter in this case did not bind the executant to the acts done by her husband. The petitioner cited a similar case where a complaint filed on the basis of an authority letter was quashed.The court agreed with the petitioner, stating that the complaint was filed by a person who was not legally and validly authorized. The authority letter did not qualify as a general or special power of attorney. Therefore, the complaint was not properly instituted in law and was liable to be quashed.Conclusion:The court allowed the petition, quashing the criminal complaint No. 115 of 1998, the summoning order, and all consequential proceedings against the petitioner. The court found that the complaint lacked specific allegations to establish vicarious liability under Section 141 and was improperly filed by an unauthorized person under Section 138 of the Negotiable Instruments Act.