TaxTMI 
TaxTMI 
TaxTMI 
2014 (9) TMI 1118
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....vision Application No. 85/2013 and in Criminal Revision Application No. 74/2013. The petitioners have prayed for quashing of the complaints dated 09/11/2013 and 04/12/2012 filed by the respondent under Section 138 of the Act. ( 4. ) The petitioners are the accused and the respondent is the complainant, in each case. Parties shall, hereinafter, be referred to as per their status in the said Criminal Cases. ( 5. ) The complainant has filed the said complaints under Section 138 of the Act against the accused alleging as follows : The complainant had agreed to purchase iron ore fines of 70000 MT +/- 10% from the accused and both the parties had signed and executed various contracts upon the terms mutually agreed upon between them, after making advance payment of Rs. 6,39,00,000/- for the supply of iron ore fines. The accused no. 1, however, conveyed his inability to supply the balance quantity of iron ore fines to the complainant on 28/01/2012, whereupon the complainant made claim for demurrage and other charges to the extent of Rs. 6,05,15,020/-. The accused no. 1 vide letter dated 24/02/2012 signed by the accused no. 2, upon negotiations on the total sum due and payable to the comp....
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....h the cases. ( 7. ) The accused persons filed Criminal Revision Applications No. 85/2013 and 74 of 2013 against the order dated 07/01/2013 passed by the trial Judge, in each case. Vide orders 18/10/2013, the said Criminal Revision Applications were dismissed by the Appellate Judge against which orders, the present writ petitions have been filed. ( 8. ) Mr . Vales, learned Counsel for the accused submitted that the complaints have been signed by Shri Bhushan Honavarkar, who has been named as authorized signatory but no original resolution appointing said Bhushan Honavarkar as authorized signatory was produced by the complainant. He pointed out that a copy of the extract of the minutes of the meeting dated 27/10/2012 signed by some director has been produced. He further submitted that the name of said director is not known and even his authority is also not known. Learned Counsel pointed out that in the said extract, said Shri Bhushan Honavarkar has been named as Attorney. The learned Counsel submitted that since there is no averment in the complaint explicitly asserting the knowledge of the Attorney regarding the transaction stated in the complaint, he could not have verified the ....
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....any stage rectify the defect and at the subsequent stage send a person, who is competent to represent the Company. He submitted that the complaint cannot be quashed on this ground. He further submitted that this judgment has not been overruled by the three Judge Bench of the Supreme Court in the case of "A. C. Narayanan" . He, therefore, urged that there is absolutely no substance in the present petitions and prayed that the petitions be dismissed. ( 11. ) I have gone through the entire material on record and I have considered the submissions made by the learned Counsel for both the parties. ( 12. ) In the case of "Indra Bhushan Singh & Ors", a complaint was filed by the Deputy Registrar (Administration), Luknow Bench of the Allahabad High Court, in the Court of the Special Judicial Magistrate (CBI) in Luknow, against Dr. Rahul Verma and Indra Bhushan Singh, under the provisions of Section 195(1)(b)(i) and Section 195 (1)(b)(iii) of Cr.P.C. The complaint, as originally filed on 26/08/1991, did not mention that the said Deputy Registrar had the authority to file it on behalf of the Allahabad High Court. But a paragraph was subsequently inserted in the complaint to the effect that ....
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.... of the Company was not maintainable. As per the cheque, the drawee was the Company itself and it was the Company who was holder in due course and the cause of action had necessarily arisen in favour of the Company. It was held that the Director of the Company cannot be said to be a holder in due course since the Company by itself is a legal person. It was observed that one of the Directors can present a complaint if there is a proper authorization in favour of the said Director and such authorization can also be conferred by the Memorandum of Association or Articles of Association. The Judgment in the casewas against the finall Judgment and Order of the Metropolitan Magistrate in C.C. No. 409/1992. In the case of "State Bank of Travancor" , the Hon'ble Apex Court held that the suit filed by a person not duly authorized by Company is not maintainable. It was held that letter of authority issued by R in his capacity as Chief Executive Officer of the Company was nothing but a scrap of paper as no resolution was passed by the Board of Directors delegating its powers to R to authorize any person to file suit on behalf of the Company. The above Judgment was against the final Judgmen....
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....ments. The original resolution, however, was not produced at the time of verification under Section 200 of Cr.P.C. Similarly, the authority given to the said Director to issue the said extract true copy also was not produced. There is no averment in both the complaints as to the knowledge of the said Attorney Shri Bhushan Honavarkar in respect of the transaction explicitly stated in the complaints. ( 14. ) In the case of "A. C. Narayanan" , there were two sets of cases. One set was wherein there were orders of issuance of process against the appellant for offence punishable under Sections 138 and 142 of the Act and the second set of case was where there was final acquittal of the accused. In the cases where processes were issued, the Power of Attorney holder of six complainants had filed the said complaints against the appellant. The said Power of Attorney holder had verified the complaint in each of the cases as Power of Attorney Holder of the complainants. The learned Additional Chief Metropolitan Magistrate had issued processes against the appellant and being aggrieved by the orders of issuance of process, the appellant had moved an application for discharge/recall of process....
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....N.I. Act through power of attorney is perfectly legal and competent. (ii) 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. (iii) 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 knowledge regarding the transactions cannot be examined as a witness in the case. (iv) In the light of section 145 of N.I. Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under section 138 of the N.I. Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant or his witness upon oath for taking the decision whether or not to issue process on the complaint under section 138 of the N.I. Act. (v) The functions unde....
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....contents of the complaint, the 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 Cr.P.C., it is thereafter, open to the Magistrate, if he thinks fit to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. It has been held that the Power of Attorney holder may be allowed to file, appear and depose for the purpose of issue of process for offence punishable under Section 138 of the Cr.P.C. However, it is observed that an exception to the above is when the Power of Attorney holder of the complainant does not have a personal knowledge about the transaction, then he cannot be examined. It has been held that where the Attorney Holder of the complainant is in-charge of the business of the complainant payee and the Attorney Holder alone is personally aware of the transactions, there is no reason why the Attorney Holder cannot depose as a witness, but an explicit assertion as to the knowledge of the Power of A....
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....ind the above judgments of the Supreme Court, it is seen that in the present case, the complaint is not filed by the Power of Attorney in his personal name, but has been filed by the Company i.e. Shri Mallikarjun Shipping Pvt. Ltd,. The same, however, has been filed through the authorized representative i.e. the Attorney Mr. Bhushan Honavarkar. It is true that in the complaint, there is no averment at all to the effect that the said attorney has knowledge about the transaction in question. However, he has produced on record the extract true copy of the minutes wherein a resolution was passed on 27/10/2012 authorizing said Shri Bhushan Honavarkar to file complaint and do all other acts on behalf of the Company. It is true that the original resolution has not been produced on record and what has been produced is a extract true copy issued by one of the directors of the complainant Company. In the affidavit filed by Shri Bhushan Honavarkar, he has specifically stated that he is duly authorized representative of the complainant and that the complainant Company is duly represented by him vide resolution passed in the meeting held on 27/02/2012. In the said affidavit, he has specifically....