JUDGMENT - N.J. PANDYA, J.:---The petitioner is the original complainant in the complaint for offence under section 138 of the Negotiable Instruments Act, hereinafter referred to as the said Act. As a result of the complaint, the 38th Court, Metropolitan Magistrate, Ballard Pier registered a Case No. 1278/S/97 against the respondent No. 1 and its directors.

2. Before the learned Magistrate by filing Exh. D, the accused raised a plea that the complaint is unauthorised and hence it is liable to the dismissed. The learned Magistrate by his order dated 5-8-1998 was pleased to accept this plea and hence dismissed the complaint, passed an order of discharge and recalled the process.

3. The complainant, no doubt, is a company registered under the Companies Act. Section 142 of the said Act will have to be borne in mind, as under the said section, only a payee or a holder in due course can file a complaint. The cheque being in favour of the complainant company, this requirement is fulfilled. However, the point raised by the respondent-accused was as to the lodging of the complaint by Mr. R. Srinivasan describing himself to be the manager of the complainant-company. The heading or the title of the complaint with regard to the parties, particularly with reference to the complainant reads as under :

M/s. Credential Finance Limited a registered limited company through its Manager Mr. R. Srinivasan having his office at 618, Maker Chambers V, Nariman Point, Bombay.

4. As urged before the trial Court as well as before this Court on behalf of the accused, except for the said reference of the complainant-company, filing the complaint through its Manager, neither in the body of the complaint nor by way of documents annexed to the plaint is there any reference to the said manager Mr. Srinivasan having been authorised by the company to lodge the complaint.

5. In the body of the complaint, paragraph 2, the said Mr. Srinivasan asserts the fact that he is the manager of the complaint-company. Thereafter the transaction in the nature of bill discounting referred to pursuant to which the cheque came to be issued which having bounced, the complaint has been lodged. There is no doubt reference 10 the service of the statutory notice in respect of the cheque and averments with regard to the reply etc.

6. There are five documents annexed to the complaint and they refer to bill of exchange, correspondence, cheques and postal receipts with acknowledgments.

7. The learned Magistrate after considering this factual position of the complaint as also various authorities cited by the bar particular he has placed heavy reliance on judgment of Madras High Court reported in (1974(1) Crimes 820)1.

8. The learned Magistrate also refers to the stand taken by the complainant in the reply dated 24-2-1998 against the said application for discharge etc. that the said Mr. R. Srinivasan is an authorised manager under the resolution. He has brushed aside this stand by saying that it seems to be an after thought and there is no proof on record in support of the same.

9. The learned Magistrate is carried away more by the fact that the authorisation is neither produced along with the complaint nor at the time of taking cognizance and even till date that the said application is considered. It is obvious that the matter was not at the stage of proof and if at that stage no evidence was produced as to the authorisation, dismissal of complaint on that count could well be understood. Inspite of there being Bombay judgment reported in (Bratindranath Banerjee, Director, Standard Chartered Bank v. Hiten P. Dalal) 2 1994(4) Bom.C.R. 237, on the point, the learned Magistrate distinguished it by the fact that the authorisation of one Mr. Banerjee who was the director of the complainant bank was not challenged.

10. In my opinion this sort of narrow distinction sought to be made in the manner done with regard to the Bombay judgment is totally uncalled for. The complaint having been registered,

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