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2008 Supreme(SC) 1283
Supreme Court of India
R.V. RAVEENDRAN & P. SATHASIVEM
Shankar Finance & Investments
Versus
State of Andhra Pradesh & Others
CRIMINAL APPEAL NO.1449 OF 2003
Decided on: 26-08-2008
For the Appellants:L. Roshmani, (for M/s. P.S.N. & Co.), Advocates.
For the Respondents:Prabhkar Rao Voruganti, Mrs. D. Bharathi Reddy and M.K. Micheal, Advocates.
Headnote:
Civil Procedure Code,1908 - Order 3 - Rules 1 and 2 - Criminal Procedure Code - 1973 - Negotiable Instruments Act, 1881 - Section 138 - Power Of Attorney – Employment - Appellant - Complainant filed complaint against respondents herein namely Specialty Aqua Ventures its Managing Director and Chairman arrayed as accused alleging that cherub for issued by third respondent on behalf of respondents was dishonored - Respondents filed an application seeking discharge - Said petition was dismissed by Magistrate by order - Revision filed by them against order of Magistrate was rejected by Sessions Court – Thereafter fourth respondent herein third accused filed petition for quashing proceedings - Fourth respondent contended that he could not be arrayed as an accused as was issued by third respondent in his individual capacity - High Court allowed said petition on different ground by order and quashed complaint as against fourth respondent –Held, Court has referred to fact that sworn statement before Magistrate was of attorney holder of payee and not by payee in person - According to tenor of order of High Court this was also irregular - But court find nothing irregular in such procedure. It is now well settled that object of section Code in providing for examination of complainant and his witnesses by court is to satisfy itself about existence of prima facie case against person accused of offence and to ensure that such person is not harassed by false and vexatious complaints by issue of process - Business transactions of companies partnerships or proprietary concerns many time the authorized agent or attorney holder may be only person having personal knowledge of particular transaction and if authorized agent or attorney holder has signed complaint it will be absurd to say that he should not be examined section Code and only Secretary of company or partner of firm or proprietor of concern who did not have personal knowledge of transaction should be examined - Course where is drawn in name proprietor of proprietary concern but an employee of such concern who is not an attorney holder has knowledge of transaction payee as complainant and employee who has knowledge of transaction may both have to be examined - Be that as it may - In this case court find no infirmity - Appeal allowed
Judgment
R.V. Raveendran J.
1. The complainant in a proceedings under section 138 of the Negotiable Instruments Act, 1881 ('Act' for short), challenges in this appeal by special leave, the order dated 21.8.2002 passed by the Andhra Pradesh High Court in Criminal Petition No.1737 of 2001 holding that the complaint signed by a Power of Attorney holder was not maintainable.
2. The appellant - complainant filed a complaint dated 2.4.1996 against respondents 2 to 4 herein (namely M/s Speciality Aqua Ventures Ltd, its Managing Director and Chairman arrayed as accused 1, 2 and 3) alleging that a cheque for Rs.12,40,000/-issued by the third respondent (on behalf of respondents 2 to 4) was dishonoured. Respondents 2 and 4 filed an application seeking discharge. The said petition was dismissed by the learned Magistrate by order dated 17.12.1998. The Revision filed by them against the order of the learned Magistrate was rejected by the Sessions Court on 12.2.2001. Thereafter, the fourth respondent herein (third accused) filed a petition under section 482 Cr.PC for quashing the proceedings. The fourth respondent contended that he could not be arrayed as an accused as the cheque was issued by the third respondent in his individual capacity. The High Court allowed the said petition on a different ground, by order dated 21.8.2002, and quashed the complaint as against the fourth respondent. It held that the complaint was not signed by the payee, that is, the sole proprietor of the payee concern, but was signed by his Power of Attorney Holder and that was not permissible.
3. The said order of the High Court is challenged in this appeal by special leave. By interim orders dated 28.11.2003 and 2.4.2004, this Court stayed the operation of the order of the learned Single Judge and directed that the case should be proceeded with.
4. The question that arises for our consideration is whether the complaint under section 138 of the Act signed by a Attorney holder is not maintainable.
5. Section 190 of Code of Criminal Procedure ('Code' for short) enables a Magistrate to take cognizance of an offence upon receiving a complaint of facts which constitutes such offence. Section 200 of the Code requires the Magistrate taking cognizance of an offence on complaint, to examine upon oath the complainant and the witness present, if any. Section 142 of the Act provides that notwithstanding anything contained in the Code, no Court shall take cognizance of any offence punishable under section 138 of the Act except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque.
6. In MMTC Ltd. Vs. MEDCHL Chemicals & Pharma (P) Ltd. -2002 (1) SCC 234, a complaint was filed by MMTC Ltd. through the Manager of its Regional Office. Subsequently, the Manager was substituted by Dy. General Manager who was duly authorized. The High Court held that the complaint was not maintainable as it was signed and presented by a person, who was neither an authorized agent nor a person empowered under the articles of association or by any resolution of the Board to do so. It held that only the Executive Director of MMTC Ltd had the authority to institute legal proceedings. Reversing the said decision, this Court held :
"In our view the reasoning given above cannot be sustained. Section 142 of the Negotiable Instruments Act provides that a complaint under section 138 can be made by the payee or the holder in due course of the said cheque. The two complaints, in question, are by the appellant company who is the payee of the two cheques."
"This Court has as far back as in the case of Vishwa Mitter Vs. O.P. Poddar - 1983 (4) SCC 701, held that it is clear that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. It has been held that no court can decline to take cognizance on the sole ground that the complainant was not competent to file the compl
