TaxTMI 
TaxTMI 
2014 (10) TMI 1088
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.....80.00 lakh to the accused in terms of an agreement dated 22.2.1996. On the failure of the accused to comply with the obligations under the contract, the complainant is said to have recalled the balance advance repayable after adjusting certain amounts payable under the terms of the agreement. The said amount claimed by the complainant was not disputed by the accused. The accused is said to have issued a cheque for an amount of Rs. 35 lakh, which when presented by the complainant for encashment, was returned with an endorsement by the banker of the accused, that the funds in the account of the accused were insufficient. 3. The respondent having issued a notice of demand in terms of Section 138 of the NI Act, the petitioners are said to have replied contending that the cheque in question had only been issued as security and was not in discharge of any ascertained liability. A complaint was thus filed by the respondent, represented by its General Manager, one M.S. Zahed, who was said to have been duly authorized by the Chairman of the Board of Directors of the respondent company. However, the said General Manager was said to have been substituted by one M.R Jayaram, who was said t....
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....t at Para-23 of the impugned judgment, the learned Magistrate has given a clear finding that the accused have not raised a plea regarding the authorization of the complainant's representatives by putting any suggestion in the cross-examination of PW-1. Therefore, the decision of the learned Magistrate is in conformity with the law laid in Sarathi Leasing Finance Limited, supra. Reliance is placed on a decision of the Bombay High Court in the case of Credential Finance Limited v. State of Maharashtra and others, 1999 Crl.L.J. 1032; the decisions of the Supreme Court in the cases of Vishwa Mitter v. O.P.Poddar and others, (1983)4 SCC 701; M.M.T.C. Limited and another v. Medchl Chemicals and Pharma (Private) Limited and another, (2002)1 SCC 234 and United Bank of India v. Naresh Kumar and others, (1997)90 Company Cases 329, for the proposition that, neither the Negotiable Instruments Act nor the Companies Act imposes a pre-condition that there has to be an authorization, that too, in the form of a Board Resolution in favour of any person filing a complaint on behalf of the company and that criminal law can be set in motion by any person by filing a complaint and therefore, any offi....
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.... on a decision of the Supreme Court in (2009) 1 SCC 407, held that the said case law was not applicable to their case for the sole reason that it pertains to a complaint filed on behalf of a Government Company or Statutory Corporation, and its representative was a public servant. Further, the judgment of the Supreme Court in (2009) 1 SCC 407 squarely applies to the facts of the present case. The complainant is a subsidiary of HMT Limited which is a Government Company and the complainant's officers being public servants as defined under Section 21(12) of the Indian Penal Code read with Section 617 of the Companies Act read with PW-1's statement in the cross-examination at page 4 of the deposition, which fact is undisputed, all actions taken by the complainant's officers in their official capacity are binding on the complainant company and therefore it has to be presumed that they are duly authorised in these proceedings. Further, it is contended that without prejudice to the contention that the Articles of Association cannot be looked into, Ex.P-1 and Ex.P-26 have been signed by the Chairman of the complainant company, who is the head of the company as also the Board of Direct....
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.... Keshvanand, ( 1998) 1 SCC 687) that a complainant must be a corporeal person who is capable of making a physical appearance in the court. If a complaint is made in the name of an incorporeal person (like a company or a corporation) it is necessary that a natural person represent such a juristic person in court. The court looks upon the natural person to be the complainant for all practical purposes. No magistrate shall insist that the particular person whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. There may be occasions when different persons can represent the company. It would be open for the de jure complainant company to seek permission of the court for sending any other person to represent the company in court. Thus even presuming that initially there was no authority, still the company can at any stage, rectify that defect . Therefore, the question whether a person is competent and authorised to represent an incorporeal body such as a company or a corporation, in filing or presenting the complaint, would not normally be gone into in the court taking cognizance of a complaint, if the com....