TMI Blog2022 (10) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... to institute the complaint and verify the pleadings. A copy of the Power of Attorney has been annexed to the complaint. Therefore, the learned Magistrate was justified in taking cognizance of the complaint and issuing process against the petitioner on the basis of the impugned complaint. It is true that in the instant case the statement of the Attorney of the respondent has not been recorded on oath as contemplated by Section 200 of the Cr. P. C but then the same is only an irregularity which would not vitiate the proceedings - Besides the averments made in the complaint, the complainant has placed on record the cheque in question, the memo of dishonour, demand notice and the receipt depicting the issuance of notice. When this material is considered, even in the absence of the statement of the Attorney Holder of the complainant, a case for issuance of process against the petitioner is made out. Therefore, the mere fact that the statement of the Attorney Holder of the complainant in this case has not been recorded in accordance with the provisions contained in Section 200 of the Cr. P. C would not vitiate the whole proceedings. The argument of learned counsel for the petitioner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned trial Magistrate but the same was dismissed in terms of order dated 02.03.2020. A revision petition came to be filed by the petitioner before the Court of learned Additional Sessions Judge, Pulwama, but the same was also dismissed in terms of order dated 01.08.2018. 3) The petitioner has challenged the impugned complaint and the impugned orders, primarily, on the ground that the complaint has not been filed through a competent person, inasmuch as original Power of Attorney in favour of Shri Basharat Gul, through whom the complaint has been filed, has not been placed on record of the trial court. It has been contended that only a Xerox copy of the Power of Attorney has been produced before the trial court which is not the requirement of law. It is further contended that the impugned complaint does not contain an averment that Shri Basharat Gul, the Attorney Holder, is conversant with the facts of the case, which, according to the petitioner, is a mandatory condition. In this regard the petitioner has relied upon the judgment of Delhi High Court in the case of Taruna Batra vs. Shikha Batra, 2008 (147) DLT 257. Reliance has also been placed on another judgment of the Madras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed by Section 142(a) of NI Act would stand satisfied if the complaint petition itself is filed in the name of the payee or the holder in due course of the cheque? (ii) Whether a power-of-attorney holder can be verified on oath under Section 200 of the Code? (iii) Whether specific averments as to the knowledge of the power-of-attorney holder in the impugned transaction must be explicitly asserted in the complaint? (iv) If the power-of-attorney holder fails to assert explicitly his knowledge in the complaint then can the power-of-attorney holder verify the complaint on oath on such presumption of knowledge? (v) Whether the proceedings contemplated under Section 200 of the Code can be dispensed with in the light of Section 145 of the NI Act which was introduced by an amendment in the year 2002? 8) After discussing the law on the subject, the Supreme Court answered the afore-quoted questions in the following manner: (i) Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent. (ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed the authority of the said individual to present the complaint, opportunity should have been given to the complainant to prove the same, but that opportunity need be given only when the trial commences. The 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. We, therefore, set aside the impugned orders and direct the trial court to proceed with the trial and dispose it off in accordance with law. Parties are directed to appear before the trial court on 31.01.2000. 10) Again, in National Small Industries Corporation Ltd. vs. State (NCT of Delhi) and Ors. (2009) 1 SCC 407, the Supreme Court has held as under: 14. The term complainant is not defined under the Code. Section 142 of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , when in a complaint in regard to dishonour of a cheque issued in favour of a company or corporation, for the purpose of Section 142 of the NI Act, the company will be the complainant, and for purposes of Section 200 of the Code, its employee who represents the company or corporation, will be the de facto complainant. In such a complaint, the de jure complainant, namely, the company or corporation will remain the same but the de facto complainant (employee) representing such de jure complainant can change, from time to time. And if the de facto complainant is a public servant, the benefit of exemption under clause (a) of the proviso to Section 200 of the Code will be available, even though the complaint is made in the name of a company or corporation. 11) All the aforesaid three judgments were considered by the Supreme Court in a recent case titled M/S TRL Krosaki Refractories Ltd. vs. M/S SMS Asia Private Limited anr, (2022) 7 SCC 612. After discussing these judgments, the Supreme Court went on to observe as under: In that view, the position that would emerge is that when a company is the payee of the cheque based on which a complaint is filed under Section 138 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case authority of a person filing complaint on behalf of the company is disputed by the accused, the same would be a matter of trial to be decided during the course of trial and it would not be a ground to dismiss the complaint at the threshold itself. The ratio laid down in these judgments has not been taken note of either by Delhi High Court or by Madras High Court in the judgments relied upon by the petitioner. Thus, the ratio laid down in these judgments to the effect that production of original Power of Attorney is necessary at the time of taking cognizance of the complaint under Section 138 of NI Act, is not the correct position of law. 13) In the instant case, the respondent/complainant has specifically pleaded that Shri Basharat Gul is the duly constituted Attorney of the Bank who is authorized to institute the complaint and verify the pleadings. A copy of the Power of Attorney has been annexed to the complaint. Therefore, the learned Magistrate was justified in taking cognizance of the complaint and issuing process against the petitioner on the basis of the impugned complaint. 14) It has been next contended by learned counsel for the petitioner that the statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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