TaxTMI 
TaxTMI 
2021 (7) TMI 423
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.... 1.C.C. No.543/2012, 1.C.C. No.530/2012, 1.C.C. No.615/2012, 1.C.C. No.580/2012, 1.C.C. No.614/2012, 1.C.C. No.3/2013, 1.C.C. No.529/2012, 1.C.C.31/2013 and 1.C.C.48/2013, respectively, by the learned S.D.J.M., Panposh. 4. The facts of the cases are not disputed. The complainant-opposite party is a supplier of the petitioner-company. It is alleged that he supplied coal to the petitioner-company for valuable consideration. The accused-petitioners issued several cheques amounting to almost 10 crore rupees. All the cheques were presented before the Uco Bank, Rourkela but the cheques were not honoured, which led to issuance of notices as envisaged under clause (b) of the proviso to Section 138 of the N.I. Act. After service of such notices, there being no payment by the accused, the complaints were lodged before the learned SDJM, Panposh. The learned Magistrate took cognizance of the offence under Section 138 of the N.I. Act in all these cases. Such orders of taking cognizance and issuance of processes have been assailed in all these criminal revision applications. 5. The main contention of the learned counsel appearing for the petitioners in all these cases may be summari....
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....osh has no jurisdiction to take cognizance and try the case in view of the fact that the cheques were allegedly dishonoured by the Oriental Bank of Commerce, Barbil Branch in the district of Keonjhar, though those cheques were presented to the Uco Bank, Rourkela. He would further argue that the complaints are liable to be dismissed from non-payment of proper court fees as per the Odisha Amendment to the Court Fees Act. Considering the aforesaid facts of the case, the ratio decided in the aforesaid cases and the material available on record, the learned counsel for the petitioners submits that, the impugned orders of taking cognizance of offence by the learned Magistrate on the dates mentioned above, against the petitioners are liable to be set aside as the complaints are not maintainable. 6. Mr. Biswajit Nayak, the learned counsel appearing for the opposite parties would answer the point raised by the petitioner-counsel in the following manner:- (i) As far as the 1st contention raised by the petitioners that the Senior Clerk or Dy. In-charge is not competent to file the case on behalf of the complainant, it is submitted that at paragraph-1 of the complaint petition, the....
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....nce of such offence unless the complainant satisfies the eligibility criterion, but in the absence of any such specification, no Court can throw-out the complaint or decline to take the cognizance on the sole ground that the complainant was not competent to file the complaint." In the case of National Small Industries Corporation Ltd. (supra), the Hon'ble Apex Court at paragraph-10 has held as follows: "10. The term `complainant' is not defined under the Code. Section 142 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 complain....
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....he company can, at any stage, rectify that defect. At a subsequent stage the company can send a person who is competent to represent the company. The complaints could thus not have been quashed on this ground". (emphasis supplied) In the case of the Associated Cement Co. Ltd., (supra), the Hon'ble Apex Court at paragraphs 23 and 25 has held as follows: "23. The above scheme of the new Code makes it clear that complainant must be a corporeal person who is capable of making physical presence in the court. Its corollary is that even if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court and it is that natural person who is looked upon, for all practical purposes to be the complainant in the case. In other words, when the component to a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in court proceedings. 25. Be that so, we suggest as a pragmatic proposition that no magistrate shall insist that the particular person, whose statement was taken on oat....
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....35,08,067.17 (In total Rs. 76, 95, 166.25 (Rupees seventy six lakh ninety five thousand one hundred sixty six and paise twenty five) only. That, towards part payment against the aforesaid bills amount, the Account No.2 issued and delivered two cheques bearing No.314894, Dt.28.06.12 for Rs. 15,00,000/- (Rupees forty five lakh) both drawn on "Oriental Bank of Commerce", Barbil Branch, Keonjhar, Odisha of Shree Metalicks Ltd., under your signature in favour of the complainant i.e. Agarwal Coal Corporation Pvt. Ltd. That, at the time of handing over the said cheque, the Accused No.2 assured the complainant that there is sufficiently balance in their bank account and the said cheques will be honored positively on presentation. That, the complainant served a demand notice (Notice dated 03.11.2012) on 03.11.2012 through his advocate Bulu Patnaik by Regd. Post with A.D. in favour of the Accused Nos.1 and 2 demanding therein to make payment of the said cheques amount i.e. Rs. 60,00,000/- (Rupees sixty lakhs) only to the complainant within 15 (fifteen) days of receipt of the demand notice. That, the Accused Nos.1 and 2 have received the said demand notices....
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....nted the Company before the Magistrate's Court. Though the appellant preferred a revision before the Sessions Court, that became futile and he moved the High Court invoking Section 482 of the Code of Criminal Procedure. Learned Single Judge dismissed the petition of the appellant in spite of the fact that the appellant produced a copy of the resolution for showing that the Company had authorised the particular individual to present the complaint before the Court. The High Court while dismissing the petition observed thus: "Having heard the parties' counsel and after going through the record it appears that the resolution which has been filed on record of this court is not certified by any person at p. 13. If it is an uncertified copy, how far it could be taken to be a correct and true copy. But nobody is inclined to take responsibility about its correctness. It is a matter of grave doubt that such a resolution should inure to the benefit of the petitioner, for, it is not a civil suit. It is a criminal prosecution. Authorisation to prosecute, being of the nature of sanction, the Board of Directors is supposed to apply their mind to the facts and circumstances of eac....
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....tiated in its name by an employee of the company or even by a nonemployee of the company. (vi) when the complainant is the body corporate, it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in the court proceeding. (vii) Even presuming that initially there was no authority, still the company can at any stage rectify that defect. At a subsequent stage the company can send a person who is competent to represent the company. Thus, the complaint should not be quashed on that ground. (v) In a case the accused disputes the authority of individual to present the complaint, opportunity should be given to the complainant to prove the same, which can be done only when the trial commences. Thus, 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. 10. In applying the aforesaid principles to the case at hand, this Court finds from the record that all the complaints have been filed by M/s Agarwal Fuel Corporation (P) Ltd. represented through Sri Ratnakar Nayak, who is Deputy In-cha....
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....e benefit of the State. The privy council further held that it is evident from the character of the Act, and is brought out by Section12, which makes the decision of the first Court as to value final as between the parties, and enables a Court of appeal to correct any error as to this, only where the first Court decided to the detriment of the revenue. The defendant in the suit seeks to utilize the provisions of the Act not to safeguard the interests of the State, but to obstruct the plaintiff; he does not contend that the Court wrongly decided to the detriment of the revenue but that it dealt with the case without jurisdiction. In the circumstances this plea, advanced for the first time at the hearing of the appeal in the District Court, is misconceived, and was rightly rejected by the High Court." 12. Thus, it is clear that the Court Fees Act and consequently all the Orissa State Amendment are only to providing for taxing purposes. If insufficient court fees are paid in a proceeding, be it a civil or criminal, the proceeding should not be dismissed at the threshold, rather the Court is under a duty to give a reasonable opportunity to the petitioner in a complaint case or the p....
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....pter XVII in general of the NI Act. The Hon'ble Supreme Court further held that vindication of the view is duly manifested by the decisions and conclusion arrived at by the High Court even in a few cases that the Supreme Court has decided by the judgment. Therefore, the Hon'ble Supreme Court further clarified that the complaint is statutorily bound to comply with Section 177, etc of Code and therefore, the place or situs where the Section 138 complaint is to be filed is not of his choosing. Therefore, the Hon'ble Supreme Court held that the territorial jurisdiction is restricted to the court within whose local jurisdiction the offence was committed, which in the present context is where the cheque is dishonoured by the bank on which it is drawn. Thus, to consider whether all the complaints filed by the complainant-opposite party in all these cases before the learned SDJM, Panposh, Rourkela in the district of Sundargarh are liable to be set aside. This question has been answered by the Hon'ble Supreme Court in the same judgment of Dashrath Rupsingh Rathod (supra). The Hon'ble Supreme Court held that it is quite alive to the magnitude of the impact that the present decision shall ....
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....ses. It is not disputed in these cases, except in one case, i.e. I.C.C. No.579/2012, evidences have not started. Even in the aforesaid complainant case, only the examination-in-chief in the form of affidavit has been filed. Cross examination has not been started. So, this Court is of the opinion that in all fitness of things, all the cases should be re-filed before the learned JMFC, Barbil, who has the jurisdiction to decide the case and try the offence. 15. Hence, this Court is of the opinion that in the present cases the company has been duly authorized an authorized person. If the accused arrayed in this cases wants to disputes those facts and statements, the said issues may be raised at the time of trial of the cases and opportunities should be given to the complainant to show before the learned Magistrate that in fact, the company made a Resolution to authorize Mr. Ratnakar Nayak to file the complaint on behalf of the company and if necessary examine the Managing Director or any of the Directors of the company. 15.1 Mr. Udgata's argument that a complaint case has to be filed only the Secretary or any of the Directors or other principal officer of the Corporation is also ....
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....company acting on behalf of company but by an employee of the company, who is well acquainted with the facts of the cases, the orders taking cognizance of offences against the petitioners in all the cases cannot be quashed on that ground alone. It is especially so because there is a Resolution of the Board of Directors to authorize Mr. Ratnakar Nayak, Deputy In-charge to initiate the complaint. 18. Furthermore, having considered the facts of the case and the submissions made by the learned counsel appearing for the parties, I am of the considered opinion that when the complainant alleges that a large sum of money (approximately ten crores of rupees) were to be paid to it through cheques and all the cheques bounced, the complaints should not be dismissed at the threshold. This observation is in addition to the other considerations discussed in the preceding paragraphs. 19. In the result, on a careful conspectus of the entire material on record as well as the law governing the field, this Court is of the opinion that the cognizance taken by the learned SDJM, Panposh cannot be quashed or set aside because of non-compliance of the provisions of the Companies Act, 1961 or for defi....