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TMI Blog2021 (3) TMI 1463X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Magistrate, after considering the sworn statement filed by way of affidavit by the complainant, issued the process against the present petitioners. Hence, the present petition is filed before this Court. 3. The main contention of the learned counsel appearing for the petitioners is that the complaint is filed against the Directors of the M/s. Café Coffee Day, who are the petitioners herein but M/s. Café Coffee Day is not a juristic person. In para No.9 of the petition, it is averred that M/s. Café Coffee Day is not a juristic person and there is no compliance of Section 141 of the NI Act. Nothing is averred with regard to the fact that the petitioners are in-charge of the affairs of the Company. The complaint is filed by the Power of Attorney Holder and no averment is made in the complaint that the Power of Attorney Holder is having knowledge about the transaction. The cheque is signed by Lakshman for M/s. Coffee Day Global Limited and the complaint does not disclose that the Power of Attorney Holder is having the knowledge of the same. The sworn statement constitutes an affidavit but the said affidavit filed by the complaint is also defective. The docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nowledge regarding the transactions cannot be examined as a witness in the case. 5. Learned counsel also relied upon the judgment of the Apex Court in the case of V.R.KAMATH V. DIVISIONAL CONTROLLER, K.S.R.T.C., BANGALORE AND ANOTHER reported in 1998 (1) Kar. L.J. 529 regarding the defective affidavit and entering the name and prescribed particulars of deponent and obtained his signature in the register. The entries must be in serial order and affidavit shall bear the serial number and the place of attestation must also be written on affidavit. The affidavit not containing these particulars cannot be accepted as duly attested. 6. Learned counsel referring to these judgments would vehemently contend that there is no declaration of the Power of Attorney Holder for having knowledge of the facts and the affidavit is also defective and hence, there cannot be any order of taking cognizance against the petitioners herein. 7. Learned counsel for the respondent, in support of his arguments, would vehemently contend that out of 17 cheques, only 6 cheques were presented and M/s. Café Coffee Day is the division of the juristic person. Learned counsel also would vehemently content tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability, the Company represented by its Directors, who are accused Nos.1 to 9 herein collectively took a decision to clear the liability and convinced the complainant to accept the post dated cheques. Hence, issued totally 17 cheques signed by the authorized signatory, namely, Accused No.10 herein. Out of 17 cheques, the complainant initially presented 6 cheques for encashment for a sum of Rs. 34,59,464/-, the details of the said cheques are also furnished in the complaint. It is also averred in the complaint that on presentation of those 6 cheques, the cheques had bounced for want of sufficient funds. The legal notice also got issued to all the Directors and Authorized Signatory/ies, who are in charge of the day-to-day affairs of the Company, namely, all the accused herein i.e., accused Nos.1 to 10. The copy of the notice issued against all the Directors are also produced before the Court. 11. Having taken note of the averment made in para Nos.5 and 6, it is clear that these accused persons were in the realm of affairs of the Company and also the specific pleading is made that they were in charge of day-to-day affairs of the Company. It is to be noted that in para No.5 of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, the Court has to take note of the averment made in the complaint and also the sworn statement. It is not in dispute that the affidavit has been filed before the Court. However, it is to be noted that the affidavit has been filed on 12.12.2020 that is during the course of the pandemic situation and it is also to be noted that in the list of documents filed along with the complaint, all the documents are referred but not marked. In para No.4 of the affidavit, the averments are made with regard to the documents and particulars of the cheques. In the circumstances, the petitioners cannot find fault with the complaint. 14. The main contention of the learned counsel for the petitioners is that the complaint is not lodged against a juristic person. On perusal of the complaint, it discloses that the same is filed against M/s Café Coffee Day, represented by its Directors, whereas the word "Global" is missing. In order to substantiate the contention of the respondent, learned counsel also brought to the notice of this Court that Annexure-A notice was issued against a juristic person i.e., M/s. Café Coffee Day Global Limited and the specific averments are made against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t The Coffee Day Global Limited, K.M. Road, Chikmagalur, Karnataka. Hence, the very contention of the learned counsel for the petitioners that the complaint is not made against a juristic person, cannot be accepted. The defences which have been taken by the petitioners are to be considered only during the course of the trial and not at this stage. 16. Having perused the material on record, the contentions raised by the petitioners herein cannot be accepted at this stage since it is a matter of trial. The complainant can even array the Company at any stage. Herein, it is a case of issuance of notice against a juristic person and its Directors. Hence, I am of the opinion that it is not a case for quashment of the proceedings on the ground of technicality and the Court has to look into the substantative material available on record and substantative justice has to be done. Hence, I do not find any merit in the petition to quash the proceedings initiated against the petitioners herein. 17. In view of the discussion made above, I pass the following:- ORDER The petition is hereby rejected. In view of disposal of the main petition, I.A.No.1/2020 for stay does not survive for consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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