Complaint filed by manager of the company if a complaint by company.

JANARTHANAM, J.

Gopalakrishna Trading Co., which is dealing in submersible pump sets, is situate at No. 116, Angappa Naicken Street, Madras-1. Krishna Electricals and Hardwares, a partnership firm, is situate at No. 167-B, Nethaji Road, Manjakuppam, Cuddalore-607 001. One D. Baskaran is the managing partner of the said firm.

The said Baskaran in his capacity as managing partner, it is said, had been purchasing submersible pump sets from Gopalakrishna Trading Co. for quite long on credit basis and subsequently settling the account by the issuance of cheque for the purchases so made. On one occasion for the money due on the purchases so made, he appeared to have issued a cheque for Rs. 25, 000 dated May 30, 1991, in favour of Gopalakrishna Trading Co. The cheque when presented by the said company on November 28, 1991, got bounced with an endorsement "insufficient funds" on December 10, 1991. After complying with other formalities, it is said Gopalakrishna Trading Co. represented by its manager, P. Sivaram, lodged a complaint against the said Baskaran for an alleged offence under section 138 of the Negotiable Instruments Act, 1881, before the Seventh Metropolitan Magistrate, George Town, Madras, on January 20, 1992.

The learned Magistrate returned the complaint with an endorsement as below :

"A partner or managing partner of the firm should appear in court to give sworn statement. To report on or after February 3, 1992, but before February 14, 1992. Time 10.15 a.m. "

(Sd.) ...........

20-1-92

VII M. M.

George Town, Madras."

Aggrieved by the order of return Gopalakrishna Trading Co. represented by its manager, Sivaram, came forward with the present action under section 482 of the Criminal Procedure Code seeking a direction that the complaint be taken on the file by the court below :When this matter came for admission on February 5, 1992, the learned public prosecutor was requested to render assistance in the case and he agreed to do so, took notice and, thereafter, the case was adjourned from time to time.

Today (April 20, 1992), arguments of both learned counsel for the petitioner and learned public prosecutor were heard.

If the cause title as well as the averments made in the complaint are perused with a little bit of care, caution and circumspection, it emerges that the complaint had been filed by Gopalakrishna Trading Co. represented by its manager, P. Sivaram, and it is not as if the complaint had been lodged by Mr. Sivaram in his individual capacity.

Explanation (a) to section 141 of the Negotiable Instruments Act (for short "the Act") defines the company for the purpose of this Act and the said Explanation runs as under :"

Explanation.---For the purpose of this section, ---

(a) 'company' means any body corporate and includes a firm or other association of individuals.

"Section 142(a) deals with cognizance of offences and the said section reads as under :"

Cognizance of offences.--Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), ---

(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. "

From the provisions as extracted above, it is rather crystal clear that for the refraction or violation of the provisions of section 138 of the Negotiable Instruments Act, the court is empowered to take cognizance of such offence only if the complaint is preferred by the payee or the holder in due course of the cheque. The special definition of "company" under the Act means any body corporate including a firm or other association of individuals which may be the payee or the holder in due course of the cheque.The question that arises for consideration is as to what is the procedure to be followed in the case of preference or lodging of a complaint by the company, as defined under the Act. Known well, it is the company is a legal entity, not having soul, mind, body an