TaxTMI 
TaxTMI 
2022 (10) TMI 1069
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....he tune of Rs.2.75 crores from the respondent Bank. It is further alleged that the petitioner failed to regularize/liquidate the loan amount and the loan account shows an outstanding amount of Rs.3.50 crores. It has been submitted that the petitioner/accused issued post dated cheques for outstanding liability in favour of the respondent Bank vide cheque bearing No.021598 dated 19.05.2017 drawn on HDFC Bank, Pulwama, for an amount of Rs.2.75 crores. It has been alleged that when the said cheque was presented before the Bank on 25th May, 2017, the same was dishonoured for insufficiency of funds in terms of memo dated 25th May, 2017. It is further averred in the impugned complaint that a legal notice of demand dated 5th June, 2017 was sent through registered post to the petitioner which was received by him on 16.06.2017 but he failed to pay the cheque amount within the stipulated period which compelled the respondent to file the impugned complaint. 3) It appears that the learned Magistrate, after recording the preliminary evidence of the respondent/complainant, issued process against the petitioner in terms of order dated 20.07.2017. It also appears that the petitioner moved an appli....
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....ned complaint. 6) According to learned counsel for the petitioner, it was incumbent upon the respondent/complainant to place on record original Power of Attorney or at least produce the same for examination by the Court at the time of filing of the complaint. In this regard, learned counsel for the petitioner has mainly relied upon the ratio laid down by Delhi High Court in Taruna Batra's case (supra) and the ratio laid down by Madras High Court in Mr. R. Shekar's case (supra). In both these cases, the Courts have emphasized that before issuing process against the accused, the Magistrate has to satisfy himself as to the validity of the Power of Attorney and for this purpose, production of original Power of Attorney has to be insisted upon. 7) The question, whether a complaint can be filed through a Power of Attorney Holder, came up for consideration before the Supreme Court in the case of A. C. Narayanan vs. State of Maharashtra and another, (2014) 11 SCC 790. In the said case, the Supreme Court framed five questions for its consideration, which are reproduced as under: (i) Whether a Power of Attorney Holder can sign and file a complaint petition on behalf of the complainant?/ ....
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.... of attorney itself can be cancelled and be given to another person. 9) In the aforesaid case, the matter was considered in the perspective of the fact that the complainant in the said case was an individual and the complaint had been filed by the Power of Attorney Holder of the payee who was an individual. However, position would be slightly different in a case where the complainant is a company or a corporate entity. This question, in the background of the case where the complainant was a company, has been considered by the Supreme Court in the case of Samrat Shipping Co. Pvt. Ltd. vs. Dolly George, (2002) 9 SCC 455. In the said case, the Supreme Court has, while disapproving the dismissal of the complaint at threshold by refusing cognizance, observed as under: "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....
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....represented in such proceedings, is not governed by the Code but by the relevant law relating to companies. Section 200 of the Code mandatorily requires an examination of the complainant; and where the complainant is an incorporeal body, evidently only an employee or representative can be examined on its behalf. As a result, the company becomes a de jure complainant and its employee or other representative, representing it in the criminal proceedings, becomes the de facto complainant. Thus, in every complaint, where the complainant is an incorporeal body, there is a complainant-de jure, and a complainant-de facto. Clause (a) of the proviso to Section 200 provides that where the complainant is a public servant, it will not be necessary to examine the complainant and his witnesses. Where the complainant is an incorporeal body represented by one of its employees, the employee who is a public servant is the de facto complainant and in signing and presenting the complaint, he acts in the discharge of his official duties. Therefore, it follows that in such cases, the exemption under clause (a) of the first proviso to Section 200 of the Code will be available. 19. Resultantly, when in a....
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....process. If at all, there is any serious dispute with regard to the person prosecuting the complaint not being authorised or if it is to be demonstrated that the person who filed the complaint has no knowledge of the transaction and, as such that person could not have instituted and prosecuted the complaint, it would be open for the accused to dispute the position and establish the same during the course of the trial. As noted in Samrat Shipping Co. Pvt. Ltd (supra) , dismissal of a complaint at the threshold by the Magistrate on the question of authorisation, would not be justified. Similarly, we are of the view that in such circumstances entertaining a petition under Section 482 to quash the order taking cognizance by the Magistrate would be unjustified when the issue of proper authorisation and knowledge can only be an issue for trial." 12) From the aforesaid analysis of law on the subject, it is clear that in a case where the complainant is a company, an authorized employee can represent the said company. Once an averment to this effect is made in the complaint, it is sufficient for the Magistrate to take cognizance and issue process. It also emerges that in case authority of ....