TMI Blog2014 (9) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... It is true that in the complaint, there is no averment at all to the effect that the said attorney has knowledge about the transaction in question. However, he has produced on record the extract true copy of the minutes wherein a resolution was passed on 27/10/2012 authorizing said Shri Bhushan Honavarkar to file complaint and do all other acts on behalf of the Company. It is true that the original resolution has not been produced on record and what has been produced is a extract true copy issued by one of the directors of the complainant Company. In the affidavit filed by Shri Bhushan Honavarkar, he has specifically stated that he is duly authorized representative of the complainant and that the complainant Company is duly represented by him vide resolution passed in the meeting held on 27/02/2012. In the said affidavit, he has specifically narrated all the facts as required for issuance of process and he has stated that all the said facts are true to the best of his knowledge and belief. In such circumstances, merely because there is no averment in the complaint to the effect that said Shri Bhushan Honavarkar has personal knowledge of the transaction, that may not be sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging as follows : The complainant had agreed to purchase iron ore fines of 70000 MT +/- 10% from the accused and both the parties had signed and executed various contracts upon the terms mutually agreed upon between them, after making advance payment of ₹ 6,39,00,000/- for the supply of iron ore fines. The accused no. 1, however, conveyed his inability to supply the balance quantity of iron ore fines to the complainant on 28/01/2012, whereupon the complainant made claim for demurrage and other charges to the extent of ₹ 6,05,15,020/-. The accused no. 1 vide letter dated 24/02/2012 signed by the accused no. 2, upon negotiations on the total sum due and payable to the complainant agreed to pay a total sum of ₹ 3,50,00,000/- as accepted sum due and payable to the complainant. The accused no. 2 signed and executed the declaration-cum-undertaking dated 24/02/2012 for self and proprietor of the accused no. 1. The accused issued four cheques to the complainant namely cheque No.317005 dated 02/03/2012 for ₹ 75,00,000/-; cheque No. 317001 dated 27/02/2012 for ₹ 1,60,00,000/-; cheque no. 317002 dated 27/02/2012 for ₹ 40,00,000/-; and cheque No. 317006 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... navarkar, who has been named as authorized signatory but no original resolution appointing said Bhushan Honavarkar as authorized signatory was produced by the complainant. He pointed out that a copy of the extract of the minutes of the meeting dated 27/10/2012 signed by some director has been produced. He further submitted that the name of said director is not known and even his authority is also not known. Learned Counsel pointed out that in the said extract, said Shri Bhushan Honavarkar has been named as Attorney. The learned Counsel submitted that since there is no averment in the complaint explicitly asserting the knowledge of the Attorney regarding the transaction stated in the complaint, he could not have verified the complaint. He submitted that a copy of the extract of the Minutes is not admissible in evidence. He submitted that a complaint without authority to file it is not maintainable. Learned Counsel urged that if there are defects in the complaint, the Magistrate has no powers to return the complaint and complainant in such cases has to suffer. He, therefore, submitted that no case was made out for issuing process and, therefore, the impugned orders are bound to be qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( 11. ) I have gone through the entire material on record and I have considered the submissions made by the learned Counsel for both the parties. ( 12. ) In the case of Indra Bhushan Singh Ors , a complaint was filed by the Deputy Registrar (Administration), Luknow Bench of the Allahabad High Court, in the Court of the Special Judicial Magistrate (CBI) in Luknow, against Dr. Rahul Verma and Indra Bhushan Singh, under the provisions of Section 195(1)(b)(i) and Section 195 (1)(b)(iii) of Cr.P.C. The complaint, as originally filed on 26/08/1991, did not mention that the said Deputy Registrar had the authority to file it on behalf of the Allahabad High Court. But a paragraph was subsequently inserted in the complaint to the effect that the Deputy Registrar had the authority to file the complaint on behalf of the Luknow Bench of the Allahabad High Court. However, upon notice being issued by the Hon,ble Supreme Court, an affidavit was filed by Officer-On- Special Duty (Litigation), High Court, Allahabad, stating that no authorization was given by the High Court for filing the complaint dated 26/08/1991 before the Special Judicial Magistrate, C.B.I., Luknow, by the Deputy Registrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in favour of the said Director and such authorization can also be conferred by the Memorandum of Association or Articles of Association. The Judgment in the casewas against the finall Judgment and Order of the Metropolitan Magistrate in C.C. No. 409/1992. In the case of State Bank of Travancor , the Hon'ble Apex Court held that the suit filed by a person not duly authorized by Company is not maintainable. It was held that letter of authority issued by R in his capacity as Chief Executive Officer of the Company was nothing but a scrap of paper as no resolution was passed by the Board of Directors delegating its powers to R to authorize any person to file suit on behalf of the Company. The above Judgment was against the final Judgment of the Division Bench of the Delhi High Court in an appeal preferred against the final Judgment of the trial Court. In the case of Pepsi Foods Ltd , it has been held that the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceedings quas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there were two sets of cases. One set was wherein there were orders of issuance of process against the appellant for offence punishable under Sections 138 and 142 of the Act and the second set of case was where there was final acquittal of the accused. In the cases where processes were issued, the Power of Attorney holder of six complainants had filed the said complaints against the appellant. The said Power of Attorney holder had verified the complaint in each of the cases as Power of Attorney Holder of the complainants. The learned Additional Chief Metropolitan Magistrate had issued processes against the appellant and being aggrieved by the orders of issuance of process, the appellant had moved an application for discharge/recall of process in each of the complaints. Vide order dated 29/11/2000, the Additional Chief Metropolitan Magistrate had dismissed the said applications. The appellant had preferred Criminal Applications before the High Court for quashing the complaint and by order dated 12/08/2005 the said applications were dismissed by the High Court. Against the said orders, the appeal was filed by way of Special Leave Petition before the Hon'ble Supreme Court. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case. (iv) In the light of section 145 of N.I. Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under section 138 of the N.I. Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant or his witness upon oath for taking the decision whether or not to issue process on the complaint under section 138 of the N.I. Act. (v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person. ( 15. ) First of all, in the case of A. C. Narayanan , the Power of Attorney was given by six complainants who were actual human beings to one Doreen Shaikh in one set of cases and the Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it submitted by the complainant in support of his complaint. It has been held that the Power of Attorney holder may be allowed to file, appear and depose for the purpose of issue of process for offence punishable under Section 138 of the Cr.P.C. However, it is observed that an exception to the above is when the Power of Attorney holder of the complainant does not have a personal knowledge about the transaction, then he cannot be examined. It has been held that where the Attorney Holder of the complainant is in-charge of the business of the complainant payee and the Attorney Holder alone is personally aware of the transactions, there is no reason why the Attorney Holder cannot depose as a witness, but an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint. ( 16. ) IN the case of M/s. M.M.T.C. Ltd. and another , the Hon'ble Apex Court has held thus : 12. In the case of 'Associated Cement Co. Ltd. v. Keshvanand, 1998 1 SCC 687', it has been held by this Court that the complainant has to be a corporeal person who is capable of making a physical appearance in the court. It has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the said attorney has knowledge about the transaction in question. However, he has produced on record the extract true copy of the minutes wherein a resolution was passed on 27/10/2012 authorizing said Shri Bhushan Honavarkar to file complaint and do all other acts on behalf of the Company. It is true that the original resolution has not been produced on record and what has been produced is a extract true copy issued by one of the directors of the complainant Company. In the affidavit filed by Shri Bhushan Honavarkar, he has specifically stated that he is duly authorized representative of the complainant and that the complainant Company is duly represented by him vide resolution passed in the meeting held on 27/02/2012. In the said affidavit, he has specifically narrated all the facts as required for issuance of process and he has stated that all the said facts are true to the best of his knowledge and belief. In such circumstances, merely because there is no averment in the complaint to the effect that said Shri Bhushan Honavarkar has personal knowledge of the transaction, that may not be sufficient to dismiss the complaint at this stage. The judgment of the Division Bench of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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