SupremeToday Landscape Ad
Back
Next
Judicial Analysis Court Copy Headnote Facts Arguments Court observation
Listen Audio Icon Pause Audio Icon
judgment-img

2001 Supreme(AP) 156

Andhra Pradesh High Court
Judges : T.CH.SURYA RAO
Pritama Reddy - Appellant
Versus
Charminar Co-operative Urban Bank Ltd, - Respondent
Crl.P.Nos.4452
Decided On : 02-13-01
Advocates Appeared :
Mr.P. Prasad, Mr.C.B.Ram Mohan Reddy

Headnote:(i) Netgotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Complaint by Cooperative Urban Bank through attorney, Recovery Manager - Challenged on ground that attorney was not duly authorised to file complaint - Under Bye-laws, the Board of Directors was empowered to institute, defend conduct any legal proceedings by or against Bank - Recovery Manager was authorised under a Special Power of Attorney executed by Managing Director of Bank - Resolution of the Board also authorised Recovery Manager to prosecute all actions in Court of law - Separate resolution for each. Complaint was not required to be passed - Even in absence of minutes of the Board, Special Power of Attorney executed by Chairman and Managing Director was sufficient Complaint has to be held by duly authorised person.

       (Paras 10, 11, 15 and 18)

       (ii) Negotiable Instruments Act, 1881 - Sections 138 and .142 Complaint for dishonour of cheque Limitation - Initially complaint filed within limitation returned as it had not been signed by complainant - Complainant was present physically, before the Court - Defect in complaint for want of signature of complainant would not affect merits of the case even if it was represented subsequent to date of limitation.

       (Para 22)

       (iii) Negotiable Instruments Act, 1881 - Sections 138 and 141 – Dishonour of cheque - Offence by Company - Accused impleaded were the Company, Managing - Director who had signed the cheque and the Director /partner - Liability of Director/Partner - Specific averment that petitioners Directors were incharge of and were responsible to affairs of the Company and cheques were given with their consent and knowledge - It was not permissible to throw complaints at threshold against petitioners.

       (Para 23)

       Result: Petitions dismissed.

Judgement Key Points

- (!) The Board of Directors’ authority to institute, defend, or conduct legal proceedings by or against the Bank. [2000061320008] - (!) Recovery Manager’s authority to file complaints under a Special Power of Attorney and Board resolution. [2000061320009][2000061320010] - (!) Timing and impact of filing defects (signature, vakalath) on limitation and cognizance; initial filing vs. representation. [2000061320018][2000061320021] - (!) Liability of Directors/Partners under Section 141 in relation to offences under Section 138, with averments of in-charge/responsible conduct. [2000061320022] - (!) Inherent jurisdiction under Section 482 not to quash where Board-authorised actions exist; petition dismissed. [2000061320023] - (!) Complainant’s status as a juristic person and the proper complainant/authorised representative under Section 142. [2000061320008][2000061320021] - (!) The need for Board-authorised resolution to initiate prosecutions; absence of specific per-complaint resolution not fatal where there is a general Board authorization. [2000061320015] - (!) Court’s view that omissions in minutes accompanying the POA do not automatically vitiate, given both POA and Board resolution exist. [2000061320010][2000061320015]

What is... How to determine whether a Recovery Manager or other authorised representative is duly authorised to file complaints under Section 138 of the Negotiable Instruments Act?

What is... How to treat defects in the complaint (e.g., signature of the complainant, lack of board minutes) and whether subsequent rectification cures such defects or affects limitation?

What is... How to determine the liability of directors/partners under Section 141 for offences under Section 138 where they are in charge of and responsible for day-to-day conduct of the company/firm?


T. SURYA RAO, J.

( 1 ) ALL these petitions have been filed invoking inherent jurisdiction of this Court under Section 482 of the Criminal Procedure Code ( the Code for brevity) seeking to quash the criminal complaints filed against the petitioners herein in C. C. Nos. 554/99 and 548/99 on the file of the XVI Metropolitan Magistrate Hyderabad.

( 2 ) THE petitioner is the same in Criminal Petition Nos. 4452 and 4453 of 2000 although the petitioner in 4455 of 2000 is different. The first respondent in all these petitions is the same being the complainant, who filed the criminal complaints against all these petitioners. Since common questions of law are involved in all these petitions, they can be disposed of together.

( 3 ) THE factual matrix germane for consideration for an effective adjudication of the matter may be set forth hereunder thus :-

( 4 ) THE first respondent herein-the complainant is a Co-operative Urban Bank established duly under the provision of A. P. Co-operative Societies Act and functioning under the name and style of the Charminar Urban Co-operative Bank Limited . It has its own Bye-laws duly registered. The first accused in C. C. Nos. 554/99 is M/s M. M. Restaurant and Resorts Pvt. Ltd. ; in 547/99 is M/s. Fore Shore Marketing Private Limited; and C. C. No. 548/99 is M/s. Costal Marketing and Trading Co. The second and third accused in the first two cases are the Managing Director and Director respectively thereof and in the last case are the Managing Partner and Partner respectively thereof. The third accused in all these cases are the petitioners herein. The complainant Bank filed the criminal complaints against them under Section 138 of the Negotiable Instruments Act ( the Act for brevity ). According to the averments made in the complaint, a loan was sanctioned by the complainant-Bank in favour of the first accused, which agreed to repay the said loan amount with interest at 21 per cent per annum in certain equal instalments. The first accused issued post dated cheques to the complainant-Bank each representing the instalment amount to be paid for that month towards repayment of the said loan amount promising to get the cheques encashed as the when presented by the complainant-Bank within its validity period. When the complainant-Bank presented the cheques bearing Nos. 663615, 015281 and 016912 for the amounts of Rs. 6,07,708. 00 and Rs. 3,80,000. 00 and Rs. 3,75,000. 00 respectively, drawn in favour of the complainant-Bank, for encashment as per the instructions of the accused, the cheques were returned with the endorsement funds insufficient on 13-7-1999, 6-7-1999, and 6-7-1999 respectively. The complainant-Bank, therefore, got issued legal notices under certificate of posting calling upon the accused to remit the amounts covered by those cheques with the complainant-Bank. All the accused acknowledged the receipt of the notices sent by the Bank, but they failed to remit the amounts as demanded. It is further averred in the complaints that the petitioners-accused being the Directors and the Partners of the Company and Firm, as the case may be, have been taking part equally in day to day affairs of the first accused and A-2 and A-3 in all these three cases are responsible for the day-to-day conduct of the business of the first accused and the cheques were issued by the first accused under the signature of the second accused with the knowledge and consent of the third accused and the dishonour of the cheques thus issued was also within the knowledge of the accused.

( 5 ) PURSUANT to the summonses issued after having taken the complaints on file by the learned XVI Metropolitan Magistrate, Hyderabad, all the accused appeared before that Court. Thereafter, the petitioners filed the present Criminal Petitions, as aforesaid, seeking to quash the proceedings on the premises that the petitioners had nothing to do with the cheque transactions and that they had not signed the cheques and that all the cheques had


























Click Here to Read the rest of this document

1
2
3
4
5
6
7
8
9
10
11
Judicial Analysis

SupremeToday

SupremeToday Portrait Ad
supreme today icon
logo-black

An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers

Please visit our Training & Support
Center or Contact Us for assistance

qr

Scan Me!

India’s Legal research and Law Firm App, Download now!

For Daily Legal Updates, Join us on :

whatsapp-icon Back to top