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TMI Blog2021 (7) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... .C.C. No.615/2012, 1.C.C. No.580/2012, 1.C.C. No.614/2012, 1.C.C. No.3/2013, 1.C.C. No.529/2012, 1.C.C.31/2013 and 1.C.C.48/2013, respectively, by the learned S.D.J.M., Panposh. 4. The facts of the cases are not disputed. The complainant-opposite party is a supplier of the petitioner-company. It is alleged that he supplied coal to the petitioner-company for valuable consideration. The accused-petitioners issued several cheques amounting to almost 10 crore rupees. All the cheques were presented before the Uco Bank, Rourkela but the cheques were not honoured, which led to issuance of notices as envisaged under clause (b) of the proviso to Section 138 of the N.I. Act. After service of such notices, there being no payment by the accused, the complaints were lodged before the learned SDJM, Panposh. The learned Magistrate took cognizance of the offence under Section 138 of the N.I. Act in all these cases. Such orders of taking cognizance and issuance of processes have been assailed in all these criminal revision applications. 5. The main contention of the learned counsel appearing for the petitioners in all these cases may be summarized as follows: It is submitted that in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry the case in view of the fact that the cheques were allegedly dishonoured by the Oriental Bank of Commerce, Barbil Branch in the district of Keonjhar, though those cheques were presented to the Uco Bank, Rourkela. He would further argue that the complaints are liable to be dismissed from non-payment of proper court fees as per the Odisha Amendment to the Court Fees Act. Considering the aforesaid facts of the case, the ratio decided in the aforesaid cases and the material available on record, the learned counsel for the petitioners submits that, the impugned orders of taking cognizance of offence by the learned Magistrate on the dates mentioned above, against the petitioners are liable to be set aside as the complaints are not maintainable. 6. Mr. Biswajit Nayak, the learned counsel appearing for the opposite parties would answer the point raised by the petitioner-counsel in the following manner:- (i) As far as the 1st contention raised by the petitioners that the Senior Clerk or Dy. In-charge is not competent to file the case on behalf of the complainant, it is submitted that at paragraph-1 of the complaint petition, the complainant has specifically averred as follow: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the absence of any such specification, no Court can throw-out the complaint or decline to take the cognizance on the sole ground that the complainant was not competent to file the complaint." In the case of National Small Industries Corporation Ltd. (supra), the Hon'ble Apex Court at paragraph-10 has held as follows: "10. The term `complainant' is not defined under the Code. Section 142 NI Act requires a complaint under section 138 of that Act, to be made by the payee (or by the holder in due course). It is thus evident that in a complaint relating to dishonour of a cheque (which has not been endorsed by the payee in favour of anyone), it is the payee alone who can be the complainant. The NI Act only provides that dishonour of a cheque would be an offence and the manner of taking cognizance of offences punishable under section 138 of that Act. However, the procedure relating to initiation of proceedings, trial and disposal of such complaints, is governed by the Code. Section 200 of the Code requires that the Magistrate, on taking cognizance of an offence on complaint, shall examine upon oath the complainant and the witnesses present and the substance of such examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could thus not have been quashed on this ground". (emphasis supplied) In the case of the Associated Cement Co. Ltd., (supra), the Hon'ble Apex Court at paragraphs 23 and 25 has held as follows: "23. The above scheme of the new Code makes it clear that complainant must be a corporeal person who is capable of making physical presence in the court. Its corollary is that even 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 and it is that natural person who is looked upon, for all practical purposes to be the complainant in the case. In other words, when the component to a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in court proceedings. 25. Be that so, we suggest as a pragmatic proposition 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. There e may be occasions when a different person can represent the company e.g. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No.2 issued and delivered two cheques bearing No.314894, Dt.28.06.12 for Rs. 15,00,000/- (Rupees forty five lakh) both drawn on "Oriental Bank of Commerce", Barbil Branch, Keonjhar, Odisha of Shree Metalicks Ltd., under your signature in favour of the complainant i.e. Agarwal Coal Corporation Pvt. Ltd. That, at the time of handing over the said cheque, the Accused No.2 assured the complainant that there is sufficiently balance in their bank account and the said cheques will be honored positively on presentation. That, the complainant served a demand notice (Notice dated 03.11.2012) on 03.11.2012 through his advocate Bulu Patnaik by Regd. Post with A.D. in favour of the Accused Nos.1 and 2 demanding therein to make payment of the said cheques amount i.e. Rs. 60,00,000/- (Rupees sixty lakhs) only to the complainant within 15 (fifteen) days of receipt of the demand notice. That, the Accused Nos.1 and 2 have received the said demand notices on 08.11.2012, but despite of receiving the demand notice, the Accused Nos.1 and 2 have not given any reply nor have paid the cheques amount to the Complainant till date." 8. In support of his contentions, learned counsel for the opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant in spite of the fact that the appellant produced a copy of the resolution for showing that the Company had authorised the particular individual to present the complaint before the Court. The High Court while dismissing the petition observed thus: "Having heard the parties' counsel and after going through the record it appears that the resolution which has been filed on record of this court is not certified by any person at p. 13. If it is an uncertified copy, how far it could be taken to be a correct and true copy. But nobody is inclined to take responsibility about its correctness. It is a matter of grave doubt that such a resolution should inure to the benefit of the petitioner, for, it is not a civil suit. It is a criminal prosecution. Authorisation to prosecute, being of the nature of sanction, the Board of Directors is supposed to apply their mind to the facts and circumstances of each case before authorising any person to prosecute any person for any offence in the submission of the learned counsel. It appears plausible at least for the present purpose, for no application has ever been filed before any court seeking permission to file additional evidence, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. Thus, the complaint should not be quashed on that ground. (v) In a case the accused disputes the authority of individual to present the complaint, opportunity should be given to the complainant to prove the same, which can be done only when the trial commences. Thus, dismissal of the complaint at the threshold on the premise that the individual has not produced certified copy of the resolution appears to be too hasty an action. 10. In applying the aforesaid principles to the case at hand, this Court finds from the record that all the complaints have been filed by M/s Agarwal Fuel Corporation (P) Ltd. represented through Sri Ratnakar Nayak, who is Deputy In-charge of the said company. The employee of the company in his affidavit annexed the complaint petition has stated on oath that he has been duly authorized by the Board of Directors of the company to file the case and that he is competent to swear affidavit on behalf of the company. He further swears to the fact that the averments made in Paragraphs 1 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant in the suit seeks to utilize the provisions of the Act not to safeguard the interests of the State, but to obstruct the plaintiff; he does not contend that the Court wrongly decided to the detriment of the revenue but that it dealt with the case without jurisdiction. In the circumstances this plea, advanced for the first time at the hearing of the appeal in the District Court, is misconceived, and was rightly rejected by the High Court." 12. Thus, it is clear that the Court Fees Act and consequently all the Orissa State Amendment are only to providing for taxing purposes. If insufficient court fees are paid in a proceeding, be it a civil or criminal, the proceeding should not be dismissed at the threshold, rather the Court is under a duty to give a reasonable opportunity to the petitioner in a complaint case or the plaintiff in a civil proceeding to pay the deficit court fees. In no case, a proceeding should be dismissed for payment of inadequate court fees without affording a reasonable opportunity to the petitioner, complainant or the plaintiff to make good deficit court fees. This Court is of the opinion that even at the final hearing of the proceeding, if it is found t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 177, etc of Code and therefore, the place or situs where the Section 138 complaint is to be filed is not of his choosing. Therefore, the Hon'ble Supreme Court held that the territorial jurisdiction is restricted to the court within whose local jurisdiction the offence was committed, which in the present context is where the cheque is dishonoured by the bank on which it is drawn. Thus, to consider whether all the complaints filed by the complainant-opposite party in all these cases before the learned SDJM, Panposh, Rourkela in the district of Sundargarh are liable to be set aside. This question has been answered by the Hon'ble Supreme Court in the same judgment of Dashrath Rupsingh Rathod (supra). The Hon'ble Supreme Court held that it is quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various courts spanning across the country. After a deep consideration of the matter, the Hon'ble Apex Court held that it is expedient to direct that only those cases where, post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned JMFC, Barbil, who has the jurisdiction to decide the case and try the offence. 15. Hence, this Court is of the opinion that in the present cases the company has been duly authorized an authorized person. If the accused arrayed in this cases wants to disputes those facts and statements, the said issues may be raised at the time of trial of the cases and opportunities should be given to the complainant to show before the learned Magistrate that in fact, the company made a Resolution to authorize Mr. Ratnakar Nayak to file the complaint on behalf of the company and if necessary examine the Managing Director or any of the Directors of the company. 15.1 Mr. Udgata's argument that a complaint case has to be filed only the Secretary or any of the Directors or other principal officer of the Corporation is also of no substance as there is no such provision either in the Companies Act or in the Code of Criminal Procedure requiring the company to file a criminal complaint only through one of its principal officer. I am aware of the provision of Rule-1 of Order XXIX of the Code of Civil Procedure, 1806, which provides that in a suit by or against a corporation, any pleading may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate the complaint. 18. Furthermore, having considered the facts of the case and the submissions made by the learned counsel appearing for the parties, I am of the considered opinion that when the complainant alleges that a large sum of money (approximately ten crores of rupees) were to be paid to it through cheques and all the cheques bounced, the complaints should not be dismissed at the threshold. This observation is in addition to the other considerations discussed in the preceding paragraphs. 19. In the result, on a careful conspectus of the entire material on record as well as the law governing the field, this Court is of the opinion that the cognizance taken by the learned SDJM, Panposh cannot be quashed or set aside because of non-compliance of the provisions of the Companies Act, 1961 or for deficit court fees or for lack of jurisdiction. However, all these complaints filed before the SDJM, Panposh are allowed to be withdrawn to the complainant to be filed before the learned JMFC, Barbil within the period of limitation as prescribed from the date of such withdrawal. The learned SDJM, Panposh shall make an endorsement on each of the complaints filed before him to that effe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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