Karnataka High Court
C. Prabhu vs Sangam Corporation (Finance And ... on 30 January, 2002
Equivalent citations: 2002CRILJ2142, ILR2002KAR2198, 2002(2)KARLJ572, 2002 CRI. L. J. 2142, 2002 AIR - KANT. H. C. R. 1206, (2002) ILR (KANT) (2) 2197, (2002) 2 CIVILCOURTC 253, (2002) 2 KANT LJ 572, (2002) 3 RECCRIR 23, (2002) 3 CURCRIR 135, (2002) 2 BANKCAS 369, (2002) 3 ALLCRILR 41, (2004) 119 COMCAS 191
Author: S.R. Bannurmath
Bench: S.R. Bannurmath
ORDER S.R. Bannurmath, J.
1. These petitions are filed under Section 482 of the Criminal Procedure Code for quashing the proceedings in Criminal Case Nos. 27176 and 27177 of 2000 on the file of the XIV Additional Chief Metropolitan Magistrate, Bangalore.
2. The brief facts giving rise to the present petitions are as follows:
The respondent-Corporation has filed private complaints under Section 200 of the Criminal Procedure Code against the petitioner for an offence under Section 138 of the Negotiable Instruments Act on the ground that the petitioner had borrowed certain amounts from the complainant and in this regard towards the repayment of the same he had issued two cheques - one dated 15-2-2000 for Rs. 1,60,000/- and the other dated 22-2-2000 for Rs. 1,52,200/- drawn on Indian Overseas Bank, Malleswaram, Bangalore. It is alleged that when the cheques were presented for collection the same were returned with endorsements "insufficient fund". It is contended that in spite of issuing legal notices as required by the law which came to be returned with endorsements from the Postal Department "not claimed - return to sender". Thereafter, another notice also sent which was received by the petitioner, but, as no payment was made the present private complaints filed to take action and punish as per law.
3. On presentation of the complainants the learned Magistrate took cognizance of the offence and registered the cases in P.C.R. Nos. 693 and 696 of 2000. After recording the sworn statements of the complainant, the learned Magistrate ordered issue of process to the accused/petitioner.
4. As such, being aggrieved by the orders dated 18-9-2000 issuing process to the petitioner passed by the learned Magistrate the present petitions are filed. The main contentions raised in the petitions are regarding the competency of the Manager of the respondent/company. It is contended that under Section 69(2) of the Indian Partnership Act no suit and proceedings shall be instituted unless the firm is registered and the person suing has been shown in the register of the firms as a partner. As such, it is contended that basically Manager cannot file the complaints. It is also contended that even if it is held that Manager can file a complaint, as on the date of filing of the complaint, as the said Manager has not filed the authorisation or power of attorney from the firm, the learned Magistrate should have held that the Manager has no locus standi to file the complaints and as such initiation of the proceedings and issue of process is illegal and liable to be quashed. In this regard, several pronouncements of various Courts have been relied upon by the learned Counsel for the petitioner. These are as follows:
1. Ruby Leather Exports v. K. Venu, (1995)82 Comp. Cas. 776 (Mad.);
2. S. Ramaswamy v. K. Sudarshan Rao, (1995)83 Comp. Cas. 673 (Mad.;
3. Sudesh Kumar Sharma v. K.S. Selvamani and Ors., (1995)84 Comp. Cas. 806 (Mad.);
4. S. Krishnamurthy v. A.R. Rajan, , 1996 Cri. L.J. 3552 (Mad.;
5. Mohanlal Khemchand and Ors. v. Pavan Kumar Mohanka and Ors., , 1996 Cri. L.J. 2927 (Cal);
6. P.A. Verghese and Ors. v. M.A.A. Communications Private Limited, , 1997 Cri. L.J. 4208 (Kar.);
7. Satish and Company v. S.R. Traders and Ors., ., 1998 Cri. L.J. 419 (AP);
8. Swastik Coaters Private Limited v. Deepak Brothers and Ors., , 1997 Cri. L.J. 1942 (AP);
9. M.A. Hussain and Anr. v. Panchamal Vasudev Ganapath Kamath and Brothers and Anr., 1970(2) Mys. L.J. 1942 (AP);
5. On the other hand it is argued on behalf of the complainant that these decisions are not applicable to the present cases. It is contended that there is no prerequisite condition of filing any authorisation while filing a criminal case. The question whether a person has authorisation or not has to be decided only at the final hearing stage of the case and keeping in view the well-settled principles of law laid down by the Hon'ble Supreme Court insofar as exercise of inherent jurisdiction under Section 482 of the Criminal Procedure Code, these are not fit cases to interfere and quash the proceedings at the initial stage itself. It is also submitted that absolutely there is no prejudice caused to the petitioner by Manager filing the complaints and hence it is prayed that the petitions be dismissed.
6. The various contentions and the decision relied upon by the petitioner in my view need not be gone into detail since recently in the case of M.M.T.C. Limited v. Mehadchi Chemicals, AIR 2000 SC 182 (sic) the Hon'ble Supreme Court has dealt with this question directly and elaborately. It is laid down that "the only eligibility criterion prescribed by Section 142 is ftiat the complaint under Section 138 must be by a payee or the holder in due course of said cheque. This criterion is satisfied as the complaint is in the name and on behalf of the partnership concerned who is a payee of the cheque. Merely because complaint is signed and presented by a person who is neither an authorised agent nor a person empowered under the Articles of Association or by any resolution of the Board to do so is no ground to quash the complaint. It is open to the dp. jure complainant company to seek permission of the Court for sending any other person to represent the company into Court. Thus 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".
7. This clearly answers the query and question raised by the petitioner. It is to be noted that the proceedings in question are under the Negotiable Instruments Act which is a self-contained special law. As such, the provisions of other Acts, like the Indian Partnership Act, are not attracted. Even on perusal of the Act or even the Procedure Code I do not see any such requirement that while filing the complaint the person should disclose that he is authorised to do so or to produce any authorisation at the time of filing of complaint. It is noted that when the Manager has stated that he is the Manager of the partnership firm and is authorised to do so at the earliest stage the Courts need not doubt his authorisation or capacity. If at all the same is required to be considered, it is at the stage while trial is taking place. It is to be seen that the Apex Court as far back as in 1983 in the case of Vishwa Mitter v. O.P. Poddar and Ors., , held that any one can set the criminal law in motion by filing a complaint of the facts constituting an offence before a Magistrate entitled to take cognizance. It has been held that no Court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. It has been held that if any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, then the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute. In the present case the only eligibility criterion prescribed by Section 142 is that the complaint must be by the payee or the holder in due course. This criterion is satisfied as the complaint is in the name and on behalf of the appellant-company.
8. In the case of Associated Cement Company Limited v. Keshvanand, , it has been held that the complainant has to be a corporeal person who is capable of making a physical appearance in the Court. It has been held that 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; that the Court looks upon the natural person to be the complainant for all practical purposes; that when the complaint is a body corporate it is the de jure complaint, and it must necessarily associate a human being as de facto complaint to represent the former in Court proceedings; that 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. It has been held that there may be occasions when different persons can represent the company. It has been held that it is open to the dejure complainant company to seek permission of the Court for sending any other person to represent the company in the Court. Thus, 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.
9. Thus, I see no merits in the contentions raised by the petitioner that the complaints and the proceedings are to be quashed on the ground of non-production of authorisation or capacity of Manager to represent the complainant especially at the initial stage of taking cognizance or issuing process, etc.
10. Moreover, as observed by the Hon'ble Supreme Court in the various pronouncements, inherent power of quashing criminal proceedings should be used and exercised very stringently and with circumspection. Court exercising inherent power is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and fancy. At this stage the Court need not go into the merits at all.
11. Keeping in view the law laid down by the Hon'ble Supreme Court, in my view, there is absolutely no merit in the contention raised by the petitioner and hence I hereby dismiss the petitions as devoid of merits.