TMI Blog2021 (11) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... may not be perfect. The body of the complaint need not be required to contain anything more in view of what has been set out at the inception coupled with the copy of the Board Resolution. One of the most material aspects is that the signatures on the cheques were not denied. Neither was it explained by way of an alternative story as to why the duly signed cheques were handed over to the Company. There was no plea of any fraud or misrepresentation. It does, thus, appear that faced with the aforesaid position, the respondent only sought to take a technical plea arising from the format of the complaint to evade his liability. There was no requirement of a loan agreement to be executed separately as any alternative nature of transaction was never stated. The order of the High Court cannot be sustained and are required to be set aside - the finding is, thus, reached that the complaint was properly instituted and the respondent failed to disclose why he did not meet the financial liability arising to a payee, who is a holder of a cheque in due course. Appeal allowed. - Sanjay Kishan Kaul And M. M. Sundresh , JJ. For the Appellant : Mr. Pratap Singh Parmar, Adv.Mr. Kul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h advocate, file complaint, Verifications on Oath, appoint Constituent attorney to file complaint in the court and attend all such affairs which may be needed in the process of legal actions. For Bell Marshal Tele Systems LTD. Sd/- Dated: 17/05/2006 Director 4. We reproduce the aforesaid as the competency and the manner of filing of the complaint are the primary considerations debated before us. 5. The case made out in the complaint is that a sum of ₹ 1,60,000/- was advanced to the respondent by the Company and the cheques were issued to repay the loan. The respondent took an objection that the complaint was filed in the personal capacity of Mr. Bhupesh Rathod and not on behalf of the Company. While on the other hand it was contended by the appellant that the complaint was in the name of the Company and in the cause title of the complaint he had described himself as the Managing Director. The Company was a registered company under the Companies Act, 1956. The registration certificate, however, was not placed on record. On this aspect, it was the further submission of the respondent that it is only in the aforesaid title description that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner of doubt that the complaint was filed as the Managing Director of the Company. 11. It is the say of the appellant that there is a presumption under Section 139 and 118 of the NI Act which was not rebutted by the respondent. It was further contended that a duly signed cheque was sufficient to raise a presumption under Section 139 of the NI Act against the respondent as held in Triyambak S. Hegde v. Sripad Crl. Appeal Nos. 849850/ 2011 decided on 23.09.2021 . It was not the say of the respondent in defence that the cheque was not signed by him or was signed under any fraud or misrepresentation. 12. It was submitted that a very hyper technical view of the matter had been taken and it only related to the format of the filing of the complaint and not the substance. The trial court itself had accepted that the complaint was filed on behalf of the Company as otherwise it would have refused to take cognizance under Section 142(a) of the NI Act. The respondent had not even challenged the summoning order on the ground that the complaint is not filed on behalf of the Company. Respondent s submissions: 13. Learned counsel for the respondent, however, contended that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the receipt of the said notice. .... .... .... .... .... 139. Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. .... .... .... .... .... 118. Presumptions as to negotiable instruments.- Until the contrary is proved, the following presumptions shall be made: - (g) that holder is a holder in due course:- that the holder of a negotiable instrument is a holder in due course : provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. .... .... .... .... .... 142. Cognizance of offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), - (a) no court shall take cognizance of any offence punishable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court proceedings. Thus, no Magistrate could insist that the particular person whose statement was taken on oath alone can continue to represent the Company till the end of the proceedings. Not only that, even if there was initially no authority the Company can at any stage rectify that defect by sending a competent person. 20. The aforesaid judgment was also taken note of in a subsequent judgment of this Court in M.M.TC Ltd. Anr. v. Medchl Chemicals and Pharma (P) Ltd. Anr. (2002) 1 SCC 234 . 21. We find that the judicial precedents cited aforesaid have been breached by the Courts below. The High Court also embarked on a discussion as to the vagueness of the identity of the complainant and its relation with the legality of a loan which may be granted by the Company, something that was not required to be gone into. 22. If we look at the format of the complaint which we have extracted aforesaid, it is quite apparent that the Managing Director has filed the complaint on behalf of the Company. There could be a format where the Company s name is described first, suing through the Managing Director but there cannot be a fundamental defect merely because the name of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt had been filed by the Managing Director on behalf of the Company. Thus, the format itself cannot be said to be defective though it may not be perfect. The body of the complaint need not be required to contain anything more in view of what has been set out at the inception coupled with the copy of the Board Resolution. There is no reason to otherwise annex a copy of the Board Resolution if the complaint was not being filed by the appellant on behalf of the Company. 27. In our view, one of the most material aspects is, as stated aforesaid, that the signatures on the cheques were not denied. Neither was it explained by way of an alternative story as to why the duly signed cheques were handed over to the Company. There was no plea of any fraud or misrepresentation. It does, thus, appear that faced with the aforesaid position, the respondent only sought to take a technical plea arising from the format of the complaint to evade his liability. There was no requirement of a loan agreement to be executed separately as any alternative nature of transaction was never stated. Conclusion: 28. We are, thus, of the view that both the impugned orders of the trial court and the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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