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2013 Supreme(Ori) 116
HIGH COURT OF ORISSA
B. K. NAYAK, J.
L.P. Electronics (Orissa) Pvt. Ltd. & Others - Petitioners
Versus
Tirupati Electro Marketing Pvt. Ltd. - Opp. Party
W. P. (Crl.) No. 739 of 2011
Decided on : 18th June, 2013
For Petitioners:Mr. Jagannath Patnaik, Senior Advocate, M/s. Jaydeep Pal, Md. G. Madani.
For Opp. Party:Mr. S.P. Mishra, Senior Advocate. M/s. S. Nanda, S.K. Mohanty, B. Mohanty, S.S. Kashyap, S.K. Sahoo.
Headnote:1. COMPANIES ACT, 1956 - Sec. 291 - Power to represent the company in a litigation can only be given by the Board of Directors of the Company by passing resolution to that effect in favour of the Directors or Principal Officer of a Company, who is well versed with the facts to speak, sign and verify the same in the pleadings. - In the present case held, the complaint petition filed through the Law Officer of the complainant-company, who has also not filed Vakalatnama is wholly incompetent and as such not maintainable. (Para - 7)
2. CRIMINAL PROCEDURE CODE, 1973 - Sec. 202 - Expression ’and shall, in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction’ - The said expression makes it mandatory for the Magistrate for conducting enquiry before issuance of process where the accused is residing at a place beyond the territorial jurisdiction of the concerned Magistrate - Magistrate must conduct an enquiry in order to find out a prima facie case for the purpose of issuance of process - In the instant case, the complainant case records reveal that the complaint was never posted for enquiry - There has been an infraction of the mandatory provision of Sub-section (1) of Section 202, Cr.P.C. - Such infraction vitiates the order taking cognizance and directing issuance of process. (Paras - 9 and 10)
JUDGMENT
B. K. NAYAK, J. - In this writ application the petitioners have challenged the maintainability of the criminal proceeding in ICC No. 847 of 2008 initiated by the opposite party-company under Section 138 of the N.I. Act and prayed for quashing the said complaint case.
2. Petitioner No.1 is a company registered under the Companies Act, 1956 having its registered office at College Square, Cuttack and petitioner No.2 is its Managing Director. The opposite party is also a company registered under the Indian Companies Act having its registered office at Bapujinagar, Bhubaneswar. The opposite party filed a complaint under Section 138 of the N.I. Act in the Court of learned S.D.J.M., Bhubaneswar, which was registered as ICC No. 847 of 2008. In the complaint petition, the opposite party-company has been represented by its constituent attorney, Sri Mahendra Kumar Pradhan, Law Officer of the Company. The complaint was filed against the petitioners and five other Directors of the petitioners-company for dishonour of a cheque for Rs. 6,20,637/- which was purportedly issued towards discharge of debt. The five Directors, who were arrayed as accused Nos. 3 to 7, moved the High Court under Section 482, Cr.P.C. for quashing the complaint case filed against them, and the High Court after hearing the parties quashed the proceeding against those Directors of the accused-company.
3. The present writ petition (Criminal) has been filed by the accused-company and its Managing Director challenging the maintainability of the complaint case on the ground that the Law Officer of the complainant-company, Sri Mahendra Kumar Pradhan has not been authorized by the Board of Directors of the company under Section 291 of the Companies Act, 1956 to represent the company in presenting and prosecuting the complaint on behalf of the company and that before the Court below no document with regard to any authorization has been filed. It is also stated that the vakalatnama on behalf of the complainant filed in the Court below has been executed by one of the Directors of the complainant-company, but the complaint has been verified and presented by the Law Officer claiming to be the constituent attorney of the company, which is not permissible under law and, therefore, the complaint is not maintainable. It is further urged that the learned S.D.J.M. took cognizance of the offence under Section 138 of the N.I. Act and issued process against the petitioners without conducting enquiry under Section 202 of the Cr.P.C., which is mandatory as because the accused-petitioners reside beyond the jurisdiction of the Court of the learned S.D.J.M., Bhubaneswar.
4. The opposite party has filed counter affidavit contending that the petitioners earlier filed an application under Section 482, Cr.P.C. before this Court in CRLMC No. 1977 of 2008 with a prayer to quash the proceeding in the complaint case, which has been dismissed vide order dated 23.12.2009, and the petitioners having filed this writ petition (criminal) by suppressing the dismissal of the previous criminal misc. case, the present writ petition (criminal) for the same cause of action is not maintainable. It is also contended in the counter affidavit that the complainant-company duly appointed its Law Officer as its power of attorney by the Board Resolutions dated 05.10.1999 and 02.01.2008 and a general power of attorney has been executed in favour of the Law Officer, Sri Mahendra Kumar Pradhan on 28.04.2007 and it is further stated that the complainant can be represented through power of attorney holder in a complaint under Section 138 of the N.I. Act. The xerox copies of the Minutes of the meeting of the complainant-company dated 05.10.1999 and 02.01.2008 are annexed to the counter affidavit.
5. In the present case, admittedly, the Law Officer of the complainant-company, who is representing the company in the complaint case as its constituent attorney, has not filed Vakalatnama and, on the other hand, one of the Directo
