IMPORTANT POINT
Complaint u/ s 138 of Negotiable Instruments Act filed by proprietorship concern through manager in absence of letter of authorisation or power of attorney is not maintainable.

S.M. Sidickk, J. - This Criminal Revision is preferred as against the order passed by the learned Vth Metropolitan Magistrate. Egmore, Madras in Crl. M.P. No. 131 of 1994 in C.C. No. 9604 of 1993 dated 18-7-1994, dismissing the petition filed by the petitioner accused to dismiss the complaint since it is not maintainable in law and discharge the petitioner/accused from the case.

2. On the materials placed before him, the learned Vth Metropolitan Magistrate. Egmore. Madras came to the conclusion that only after evidence it can be decided as to whether the petitioner/accused obtained the long term pan or short term loan and as to whether the cheque was given by the accused for the long term loan or short term loan and as to whether the same was returned by the bank and so there is no reason to dismiss the complaint and accordingly he dismissed the application filed by the petitioner/accused for dismissing the complaint filed by the respondent/complainant on 18-7-1994. Aggrieved against the said findings, the petitioner I accused preferred this Revision before this court.

3. After hearing the learned counsel for both the parties the point that arises for consideration in this Revision Petition is as follows: -

"Whether the complaint preferred by the Respondent herein is not maintainable for the reasons stated in the petition filed by the revision petitioner I accused before the trial Magistrate in Crl. M.P. No. 131/1994 in C.C. No. 9604 of 1993 and whether the revision Petitioner I accused can be preyed for in Crl. M.P. No. 131 of 1994 in C.C. No. 9604/94.

4. Point- The respondent/complainant has filed the complaint before the 5th Metropolitan Magistrate. Egmore, Madras, in C.C. No. 9604 of 1993 under Sections 138 and 142 of the Negotiable Instruments Act stating that the Revision Petitioner I accused gave a cheque dated 11-8-1993 drawn in favour of Tamil Nadu Electricals for a sum of Rs. 57,750/- which was not honoured when presented of the Bankers for collection and the cheque was returned with an endorsement of insufficient funds in the accounts of the drawer. During the pendency of the complaint the Revision Petitioner I accused filed the discharge petition with the preliminary objections in Crl. M.P. No. 131/1994 and the same was resisted by the Respondent/ complainant by filing a counter. Though the Revision Petitioner has raised several objections in the discharge petition in Crl. M.P. No. 131 of 1994 the only objection that was pressed into service during the course of the arguments in his Revision is about the maintainability of the complaint on the ground that no document was produced to authorise the Manager of the complainant firm. The necessary pleas on this aspect are found in para-1 of the discharge petition filed by the Revision Petitioner before the lower court in Crl. M.P. No. 131 of 1994, which reads as follows:

“The petitioner I accused submits that the complainant had not filed any document to substantiate his claim that he is the Manager of the complainant firm and he is duly authorised to appear and file before this Hon'ble Court. Therefore, in the absence of such a document, the said Manager has no locus standi to file this complaint and this Hon'ble Court ought to have rejected the complaint ab initio.”

5. So the only objection taken by the Revision petitioner is that no document wasproduce8 by the complainant authorising the Manager to file a complaint. All the other objections relating to the merits of this case in the discharge petition were not pressed into service at the time of the arguments in this Criminal Revision.

6. The learned counsel for the Revision petitioner I accused con tended that the complaint is filed by Mis. Tamil Nadu Electricals represented by, its Manager B. Sailash Kumar 633/8. Poonamallee High Road, Aminjikarai. Madraslils mentioned in the cause title and it is stated in para-1 of the complaint that the complainant is a proprietor - Ship concern represented by its Manager B. Sa