IMPORTANT POINT : Dishonour of cheque – In a case where complainant is a company, an authorized employee can represent the company – Once averment to this effect is made in complaint, it is sufficient for Magistrate to take cognizance and issue process.

JUDGMENT :

The petitioner has challenged complaint filed by respondent against him for offence under Section 138/142 of Negotiable Instruments Act (for short NI Act), which is pending before the Court of Chief Judicial Magistrate, Pulwama. Challenge has also been thrown to the order of the learned Magistrate whereby process has been issued against the petitioner as also to order dated 01.08.2018 passed by learned Additional Sessions Judge, Pulwama, whereby a revision petition against the aforesaid order of the learned Magistrate has been dismissed.

2. It appears that the respondent has filed a complaint against the petitioner alleging commission of offence under Section 138 of NI Act, which is pending before the learned trial Magistrate. In the said complaint it is alleged that the petitioner has availed credit facility to the tune of Rs.2.75 crores from the respondent Bank. It is further alleged that the petitioner failed to regularize/liquidate the loan amount and the loan account shows an outstanding amount of Rs.3.50 crores. It has been submitted that the petitioner/accused issued post dated cheques for outstanding liability in favour of the respondent Bank vide cheque bearing No.021598 dated 19.05.2017 drawn on HDFC Bank, Pulwama, for an amount of Rs.2.75 crores. It has been alleged that when the said cheque was presented before the Bank on 25th May, 2017, the same was dishonoured for insufficiency of funds in terms of memo dated 25th May, 2017. It is further averred in the impugned complaint that a legal notice of demand dated 5th June, 2017 was sent through registered post to the petitioner which was received by him on 16.06.2017 but he failed to pay the cheque amount within the stipulated period which compelled the respondent to file the impugned complaint.

3. It appears that the learned Magistrate, after recording the preliminary evidence of the respondent/complainant, issued process against the petitioner in terms of order dated 20.07.2017. It also appears that the petitioner moved an application for dropping of proceedings before the learned trial Magistrate but the same was dismissed in terms of order dated 02.03.2020. A revision petition came to be filed by the petitioner before the Court of learned Additional Sessions Judge, Pulwama, but the same was also dismissed in terms of order dated 01.08.2018.

4. The petitioner has challenged the impugned complaint and the impugned orders, primarily, on the ground that the complaint has not been filed through a competent person, inasmuch as original Power of Attorney in favour of Shri Basharat Gul, through whom the complaint has been filed, has not been placed on record of the trial court. It has been contended that only a Xerox copy of the Power of Attorney has been produced before the trial court which is not the requirement of law. It is further contended that the impugned complaint does not contain an averment that Shri Basharat Gul, the Attorney Holder, is conversant with the facts of the case, which, according to the petitioner, is a mandatory condition. In this regard the petitioner has relied upon the judgment of Delhi High Court in the case of Taruna Batra vs. Shikha Batra, 2008 (147) DLT 257. Reliance has also been placed on another judgment of the Madras High Court titled Mr. R. Shekar vs. Professional Circuit Boards Ltd. and another, 2007(1) DCR 487. The petitioner has further contended that the statement of the Attorney of the complainant has not been recorded on oath which is a requirement under Section 200 of Cr.P.C, as such, the same could not have been taken into consideration by the learned trial court while issuing process against the petitioner.

5. I have heard learned counsel for the parties and perused the record of the case including the trial court record.

6. A perusal of the trial court record shows that the respondent Bank has filed the impugned complaint through Mr. Basharat Gul. In the complaint it is mentioned that Shri Basharat Gul is its autho