Karnataka High Court
P.A. Verghese And Others vs Maa Communications Pvt. Ltd. on 6 February, 1997
Equivalent citations: ILR1997KAR1747
Author: M.P. Chinnappa
Bench: M.P. Chinnappa
ORDER
1. The brief facts leading to these two petitions are that at the request of A-1 the complainant undertook advertising of the products manufactured by A-1 against which the complainant raised invoices from time to time on various dates till 8-6-1993. The accused No. 1 made certain payments towards the said supplies made by the complainant. After giving deduction to the payments made by A-1, a sum of Rs. 13,76,914.78 was due to the complainant which amount the accused failed and neglected to pay to the complainant despite repeated demands and reminders. The accused No. 1 issued three cheques towards payment of the sum due which are as follows :-
1. Cheque No. 344578 dated 15-9-93 for Rs. 6,00,185.92.
2. Cheque No. 344580 dated 30-9-93 for Rs. 96,895.86 and
3. Cheque No. 344581 dated 30-9-93 for Rs. 3,79,833.00, drawn on Canara Bank, Lavelle Road, Bangalore. When these cheques were presented for encashment on 3-11-1993, the cheques were dishonoured by the bankers of the accused with an endorsement "not arranged for". Thereafter, the complainant issued a notice dated 19-11-1993 calling upon the accused therein to pay the amount covered under the aforesaid cheques. The said notice was issued by the accused on 20-11-1993 without any demur. Since the accused neither sent any reply nor settled the account, lodged a complaint for the offence punishable under Sections 138 and 141 of the Negotiable Instruments Act. The learned Magistrate after recording the sworn statement directed to issue process to the accused persons. The said order is questioned by Antony Vergues who is said to be the Director by preferring Criminal Petition No. 82123/94 and the company representing its Director Antony Vergues and Tina Antony in Criminal Petition No. 1825/94 questioning the order.
2. Heard the learned Advocates appearing for the petitioners and the learned Advocate appearing for the respondent. The petitioner has raised three contentions in his petition. Firstly, it is contended that the complaint was filed by a person who is said to be the power of attorney holder of the complainant-company. Therefore, the complaint ought to have been rejected by the Magistrate without taking cognizance of the offence. The learned Counsel for the respondent repelling this argument submitted that it is a settled law that anybody who is having the knowledge of the affairs of the company can file the complaint before the Court against the accused persons. Besides he being a P.A. holder, he is also working as Accounts Officer in the complainant-Company, he is aware of all the transactions of the company. Therefore the complaint is maintainable. In support of his argument he placed reliance on a decision reported in 1995 Cri LJ 1102. Wherein the Madras High Court has held that - The P.A. holder can file the complaint for the offence under Section 138 of Negotiable Instruments Act. In addition to that he also placed a reliance in 1996 Cri LJ 2927 (M/s. Mohanlal Khemchand v. Pawan Kumar Mohanka), wherein the Calcutta High Court has held that (Para 4) -
"On the other hand, it has been argued by the opposite party that Section 138 as also Section 141, N.I. Act is as silent about the persons who is eligible to file a complaint under the said Act. Reference has been made to decisions of the same volume in the support of the contentions that unless there is an eligible criterion mentioned in the Act, another one can move the law into motion. It is argued that S. 142 N.I. Act empowered the payee or holder in due course to make the complaint. It is submitted that M/s. Albert Devid Ltd. is the holder in due course and as he is a juristic person it must act through his officers as has been done in this case. Reference has been made to a case reported in 1993 Cal Cri LR 225. It has also been argued in terms of averment of the complaint it has been made clear that the complainant was duly authorised by the said company to make a complaint and letter of authorisation was also annexed to the complaint. Reference has also been made to a decision , in support of the contention that Manager of a company must be held to be responsible for work done by the company. From this, it has been argued that as Manager of the share departments of the company the complainant was authorised to make the complaint."
In this case as stated earlier, the company has executed a power of attorney in favour of K. Narayan who is none other than the Accounts Officer of the Company. In other words, he is the person who is having the full knowledge of the transactions of the Company and he would be the right person to speak about the transaction that had taken place between the complainant-Company and the accused persons. Therefore, the Company has rightly authorised him by power of attorney. Under that circumstances on duel capacity, he lodged the complaint. Therefore the first contention of the petitioners that the complainant was not properly represented, is liable to be rejected.
3. It is further contended that the other accused persons were responsible as they were in charge of the company affairs. Therefore the complaint is liable to be rejected. This argument also unsustainable. The complainant got issued a legal notice to the accused-Company. Though the notice was served promptly, the accused persons did not send any reply either denying or admitting their liability or specifying the person who was incharge and responsible for the affairs of the Company. Under that circumstance, there was no other alternative but to make all the Directors as the accused persons. It is also clear that one Antony Vergues signed the cheques in question but others are the Directors of the Company including the Signatory. Therefore the complainant to avoid any further complications made all the Directors as accused. However, it is open to the accused persons to make it clear before Court below by filing memo or application fixing the responsibility on any of the accused persons. If such a memo is made, the Court may pass necessary orders giving notice to the complainant.
4. It is further contended by the petitioners that the Court has taken cognizance of the offence after recording the sworn statement. Therefore the procedure followed is illegal and the order is liable to be quashed. It is a well-settled law that after receipt of the complaint if the Court proceeds to record the sworn statement, the Court deemed to have taken cognizance of the offence. In this case also the complaint was lodged on 10-12-1993 and the learned Magistrate directed to post the case for recording sworn statement and on the subsequent date the sworn statement was recorded. That action itself is an indication that the Magistrate has taken cognizance of the offence. It is further argued by the learned Counsel for the petitioner that subsequent to the recording of sworn statement, the order discloses that he had taken cognizance of the offence. Therefore the order is illegal and improper. This question has been dealt with by this Court in a decision reported in ILR (1994) Kant 2991 : (1994 Cri LJ 3115), Samant v. M/s. K.G.N. Traders, wherein it is held (at p. 3117 of Cri LJ) -
"From the fact that the Magistrate on receipt of the complaint directed that it be registered and then adjourned the case to another date and that on that date as well as on subsequent date examined the complainant would clearly indicate that he had taken cognizance of the offence and had decided to take further steps under Chapter XV. Mere fact that while passing a formal order issuing process the Magistrate has again stated that cognizance is taken does not take away the effect of his earlier action which indicated that he had already taken cognizance. The second order regarding cognizance is only superfluous and this cannot vitiate the entire proceedings."
5. For the foregoing reasons, all the three contentions raised by the petitioners are liable to be rejected. Further from the perusal of the complaint it is clear that prima facie there are materials to constitute the offence alleged against the petitioners. Being of that view, I hold these petitions are liable to be dismissed. Accordingly dismissed.
6. Petition dismissed.