2011(4) Crimes 599(Guj.)
SHORT NOTE
GUJARAT HIGH COURT
Z.K. Saiyed, J.
Virmati Software and Telecommunication Ltd. Thro’ Authorised —Appellant
versus
State of Gujarat and Anr. —Opponents
Criminal Appeal No. 243 of 2011
Decided on 4.7.2011

Headnote:Negotiable Instruments Act, 1881—Section 142—Complaint for dishonour of cheque—Complaint in writing has to be by payee—Payee was a company and evidence of complainant failed to show any letter of authority to file complaint—Trial Court was justified in giving judgment of acquittal.

       Held: Mr. Jani relied on the decision in the case of National Small Industries Corporation Ltd. v. State of Delhi, AIR 2009 SC 1284, wherein it is observed that, the term ‘complainant’ is not defined under the Code. Section 142, 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 the manner of taking cognizance of offences punishable under Section 138 of that Act. However, the procedure relating to initiation of proceedings, trial and disposal of such complaints, is governed by the Code. Section 200 of the Code requires that the Magistrate, on taking cognizance of an offence on complaint, shall examine upon oath the complainant and the witnesses present and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses.

       The requirement of Section 142 of NI Act that payee should be the complainant, is met if the complaint is in the name of the payee. If the payee is a company, necessarily the complaint should be filed in the name of the company. Section 142 of NI Act does not specify who should represent the company, if a company is the complainant. A company can be represented by an employee or even by a non-employee authorized and empowered to represent the company either by a resolution or by a power of attorney. Mr. Jani, therefore, contended that the judgment and order of the learned Judge does not require any interference.

       I have gone through papers produced before me and the judgment and order passed by the learned Judge. I have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions made by learned counsel. It appears from the papers that the main material witness is not examined and he is dropped. From the oral evidence of the complainant he is unable to produce any letter of authority to file complaint.

       In above view of the matter, I am of the considered opinion that the Learned Metropolitan Magistrate, Ahmedabad, was completely justified in acquitting the Respondent No.2 original accused of the charges levelled against him.

       I find that the findings recorded by the learned Judge are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. (Paras 12 to 15)