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TMI Blog1998 (3) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... ast Ltd. which had prayed for the dismissal of the complaint under section 138. 2. Before I incorporate the main averments of the application filed by M.S. Shoes East Ltd. (Petitioner), I would like to mention the brief facts leading to the filing of the criminal complaint. Modella Knitwear Ltd. filed a complaint under section 138 against M.S. Shoes East Ltd. in the Court of Chief Judicial Magistrate, Chandigarh. I need not incorporate the averments of the complaint but suffice it to say that before filing the complaint Modella Knitwear Ltd., which is a legal entity in the eyes of law, resolved through a resolution dated 12-4-1996, that Shri Ashok Goel, Director, Modella Knitwear Ltd. had been authorised to file a criminal complaint against M.S. Shoes East Ltd. with regard to the dishonour of cheque for a sum of Rs. 50,97,330 Shri Ashok Goel was further authorised to deal with all the legal matters and to hand over all the required documents in the court. He was further authorised to sign and to do all needful for the proceeding of the complaint. In pursuance of that resolution, the company engaged Shri Anuj Raura, Advocate of Chandigarh in order to file the complaint. The complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of Shri Anuj Raura, advocate, nor has the said Ashok Goel or anybody else authorised on behalf of the complainant-company, signed any complaint. According to the petitioner a specific procedure and time-frame was provided in sections 138 to 142 for bringing home the guilt of the accused in the event of the dishonour of the cheque. The departure/non-compliance of the procedure would lead to the dismissal of the complaint. The petitioner alleged that the complaint in writing by the payee or the holder in due course of the cheque is one of the important prerequisites in order to bring home the guilt of the accused. In the present case the complaint has not been signed by the payee or the holder in due course of the cheque and as such the requirement of section 142(a) of the Act has not been complied with and the complaint under section 138 is, therefore, liable to be dismissed. The unsigned complaint is no complaint in the eyes of law and thus the magistrate could not take cognizance nor could summon the petitioner as an accused. Moreover, the defence of the petitioner has been prejudiced because of the absence of any written complaint. 5. The said application was contested on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst him ought not to have been issued. On that ground the magistrate can drop the proceedings. But that request must have been made at the earliest stage of the case. In the instant case, the present application for dismissal of the complaint has been filed when the case was fixed for recording the statement of the accused under section 313 of the Criminal Procedure Code. The objection that the complaint is not signed by any one has not been taken at any earlier stage of the proceeding. The accused had even earlier agitated the matter before the High Court on certain other grounds. But this ground has been taken for the first time by moving this application when the case was fixed for recording the statement of the accused after closing the prosecution/complainant's evidence. There is also no dispute with the proposition of law that the provisions of a special statute override the general law. So in the instant case, the provisions of sections 138 to 142 of the Act will certainly override the provisions of the Criminal Procedure Code and the requirement of sections 138 to 142 of the Act had to be strictly complied with. 18. Section 142 of the Act reads as under : 'Cognizance of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration to come up on May 3, 1996. (Sd.) Chief Judicial Magistrate, Chandigarh, 17-4-1996." The statement of Shri Ashok Goel recorded in the preliminary evidence is duly signed by him. The above interim orders depict that Shri Ashok Goel through whom the present complaint has been filed was very much present in person on the date, the complaint was presented. The complaint is signed by Shri Anuj Raura, Advocate, counsel for the complainant. However, the space for signature by Shri Ashok Goel authorised and appointed representative of the company is blank. The complainant-company had also passed the resolution dated April 12, 1996, vide which Shri Ashok Goel, director of the company was duly authorised to file the present complaint. So there was no reason for Shri Ashok Goel not to sign the complaint. It appears that the complaint was not signed inadvertently by the complainant though the complaint in writing was presented to the court by him personally and the learned Judicial Magistrate First Class has also taken cognizance on the basis of the written complaint. The complainant was very much present in person when the complaint was presented to this Court, i.e. on April 16, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Criminal Procedure Code when this application was filed. The learned defence counsel had not been able to show as to what prejudice has been caused to the accused due to omission of the signature of the complainant Ashok Goel on the complaint. If no prejudice has been caused to the right of accused due to this omission then the mere omission of the signature cannot be a ground to dismiss the complaint. 22. The cases relied upon by learned counsel of the accused are quite distinguishable on the facts. In the case of Roy (A.K.) v. State of Punjab AIR 1986 SC 2160, the question for decision of the Apex Court was the power to initiate prosecution for the offence under the provision of the Prevention of Food Adulteration Act. The Apex Court had considered the legality of the delegation/sub-delegation of the powers to institute the complaint. In the case of Dr. P.K. Mohammed Rasheed v. State of Kerala, the necessary ingredients of the facts were not alleged in the complaint. Hence, the same was quashed under section 482, Criminal Procedure Code. In the case of Kunhimuhammed v. Khadeeja (M.K.) [1998] 92 Comp. Cas. 610 (Ker.), the complaint was beyond limitation and the condonatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on behalf of the Calcutta Municipal Corporation was filed by one Dr. R. Chandra, Food Inspector who was not authorised by the Calcutta Municipal Corporation, a local authority, but was authorised by the Health Officer of the Calcutta Corporation, whereas the complaint can be filed by the Commissioner alone for and on behalf of the Calcutta Corporation. In the title of the complaint, the name of the Calcutta Corporation was written but it was filed through Dr. R. Chandra, Food Inspector. Dr. R. Chandra had not signed the complaint and had not put the signature at the bottom of the petition and only the facsimile rubber stamp of the signature of the Commissioner was affixed purporting to be the complainant, whereas the complaint was filed through Dr. R. Chandra, Food Inspector. So in these circumstances, it was not clear as to actually who was the complainant. In that case also the question regarding the authority of Dr. R. Chandra to file the complaint was in question. The Calcutta High Court had come to the conclusion that the complainant was Dr. R. Chandra, but he was not competent to file the same. But in the instant case, there is no dispute that Shri Ashok Goel had been duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Harbhajan Singh Kalra v. State of Haryana [1993] 76 Comp. Cas. 371. That was a suit for recovery which was filed on September 28, 1976. On the date of filing the case/petition it was not signed or verified either by the plaintiff or the duly appointed attorney, though the case was signed by Shri Sharda Ram, advocate, who represented the plaintiff. The case was signed and verified by the plaintiff for the first time on July 29, 1977. The suit was filed on the basis of the pronote executed on September 29, 1973. The defendant had raised the objection that the suit is time-barred as the plaint was not signed or verified within period of limitation. But the High Court did not accept this contention and held that irregularity in the signature or verification of the plaint is a mere defect of procedure, it can be rectified at the later stage. 29. So keeping in view the above discussion I am of the considered opinion that mere omission of the signature of Shri Ashok Goel on the present complaint is only an omission and irregularity and cannot be considered to be a violation of the mandatory provisions of sections 138 to 142. This omission/irregularity is procedural and has not caused any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 142. Thus, in order to constitute a valid complaint for the purpose of section 138, there should be a complaint and that complaint must be in writing. A close scrutiny of the provisions of section 142 is not obligatory on the part of the complain-ant to establish that his complaint was signed by him or it. The word 'complaint' has not been defined under the Act but luckily it has been defined under the Code of Criminal Procedure and, according to section 2(d) of the Code, 'complaint' means any allegation made orally or in writing to a magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. The complaint under section 138 is supposed to be tried as a warrant case instituted otherwise than on a police report. The scheme of the Code shows that wherever the Legislature wanted that any action on the part of a litigant should be signed, it has so stated in the relevant provisions. However, where the Code wants that a written complaint would be enough for the purpose of taking cognizance, or for the purpose of summoning the accused, the things can go in that fashion wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (b) of section 138. Supposing a notice is given by the holder of a cheque and that notice is not signed, whether in such eventuality it can be said that the notice was bad and, therefore, the complainant had no cause of action to file a complaint under section 138. The answer to this court would be in the negative. In this regard I would like to take assistance from Satyanarayana Gowda v. Rangappa (B.) [1997] 88 Comp. Cas. 433 (Kar.), where it was held by the Karnataka High Court that when a notice under section 138(b) is not signed by the advocate of the party, such notice is not bad because the provisions do not contemplate that notice under section 138(b) should be signed by the party. In the present case when the complaint was filed on behalf of Modella Knitwear Ltd., Shri Ashok Goel appeared on behalf of the company in pursuance of the resolution and it was his statement which was recorded by way of preliminary evidence. After recording the preliminary evidence, cognizance of the offence was taken and the summons was issued to the respondent (now petitioners) to face the charge under section 138. As per section 142, no court shall take cognizance of an offence punishab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatute confers a power to be exercised or performed in a specific manner, other modes of exercise or performance are impliedly barred. He stated that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. He relied upon para No. 10 of this judgment, where it is stated as follows : "'If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceedings.' Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other modes of performance are necessarily forbidden. The intention of the Legislature in enacting section 20(1) was to confer a power on the authorities specified therein which power had to be exercised in the manner provided and not otherwise." (p. 2164) 13A. So far as the position of law is concerned, there is no dispute, but the question is whether the prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sanction under section 197(2) no cognizance can be taken with respect to certain specified offences. In this view of the matter, the second authority relied upon by learned counsel for the petitioners is not of help to him. 13C. Then reliance was placed on Nayak (R.S.) v. Antulay (A.R.) AIR 1984 SC 684. This authority is also not helpful to the petitioners. It does not lend any assistance to me. The ratio of this authority is "existence thus of a valid sanction is a prerequisite to the taking of cognizance of the offences. In the absence of such sanction the court would have no jurisdiction to take cognizance of the offences. A trial without a valid sanction where one is necessary under section 6 is a trial without jurisdiction by the court". 14. In the present case, I have already held above that the requirements of section 142 of the Act have been duly complied with when there was a written complaint before the magistrate and when on the basis of that complaint a statement has been recorded and the magistrate took the cognizance on the basis of that written complaint corroborated by the statement of the authorised person. 15. The learned counsel Shri Cheema then referred to B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling of the complaint cognizance is not taken. Cognizance is taken in a case filed on a complaint other than a police report in a warrant trial when the Magistrate applies his mind and issues the process to the accused/respondent to give answer to the allegations. The law has made a clear provision where it wants that a particular act should be done not only in writing but also signed by a party. There is no requirement that a complaint must be signed by the party before taking the cognizance. In this case the cognizance has been taken. 17. During the course of submissions it was also pointed out by the learned counsel for the respondents R.S. Ghai that the petitioners several times had agitated the matter before the High Court in different proceedings and at no point of time the complaint was ever challenged on the ground that it was not signed. Moreover, as per the provisions of section 465 of the Code, no finding, sentence or order passed by a court of competent jurisdiction can be reversed or altered by a court of appeal or revision on account of any error, omission or irregularity in the complaint, etc. I fully concur with the submissions of learned counsel for the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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