The main legal point established in the judgment is that a complaint filed by a company under Section 138 of the Negotiable Instruments Act must be in the name of the company and can be represented by an authorized employee. The issue of proper authorization and knowledge is to be addressed during the trial and not at the stage of summoning.

JUDGMENT :

Prashant Kumar, J.

1. Heard Sri Amit Daga, learned counsel for applicant, Sri Swetashwa Agarwal, learned counsel for opposite party no.2 and Sri Shashidhar Pandey, learned AGA for the State.

2. By means of this application under Section 482 Cr.P.C. the applicant has prayed for quashing the summoning order dated 16.02.2016 passed by Additional Chief Judicial Magistrate, Court No.1, Muzaffarnagar in Criminal Complaint Case No.49/9 of 2016 (whereby the trial court summoned accused applicant for the offence punishable under Section 138 of Negotiable Instruments Act) as well as entire proceedings of Criminal Complaint Case No.49/9 of 2016 (Uttarakhand Engineering Products Pvt. Ltd. Vs. M/s. Trimurti Concast Pvt. Ltd. and others), under Section 138 of N.I.Act, Police Station New Mandi, District Muzaffarnagar, pending in the Court of Additional Chief Judicial Magistrate, Court No.1, Muzaffarnagar.

3. Brief facts of the case are that Uttarakhand Engineering Products Private Limited (here-in-after for the sake of brevity has been referred to as “Complainant”) is engaged in the business of Sponge Iron and Silicon Manganese. M/s Trimurti Concast Pvt. Ltd. placed an order for supply of Sponge Iron and Silicon Manganese, the complainant supplied the product, thereafter, M/s Trimurti Concast Pvt. Ltd gave a cheque of Rs.1,07,05,318.00 on 16.07.2015 bearing cheque no.000441 drawn in HDFC Bank, 53/4-A, Bagh Kambalwala, Jansath Road, New Mandi Muzaffarnagar. This cheque was presented on 12.10.2015 and the same was bounced because of insufficiency of funds, thereafter, the complainant gave a legal notice on 23.10.2015 within stipulated time. When, M/s Trimurti Concast Pvt. Ltd did not pay the said amount the complainant was left with no option but to file a complaint under Section 138 of Negotiable Instruments Act before Chief Judicial Magistrate, Muzaffarnagar. The evidence was filed by way of an affidavit and also filed all relevant documents, thereafter, the Court was pleased to issue summons on 16.02.2016.

4. Once the summons were issued, the applicant herein, Ashok Sharma, who was signatory of the cheque filed the instant application under Section 482 Cr.P.C. in which this Court vide order dated 05.07.2016 issued notices to the opposite party no.2 and stayed the further proceedings of the aforesaid complaint case, therefore, the trial could not proceed since last 8 years. Now the pleadings are complete and the matter is ripe for hearing.

ARGUMENT ON BEHALF OF THE APPLICANT

5. Learned counsel for the applicant submits that prosecution, initiated under Section 138 of N.I. Act by and on behalf of the company cannot be initiated through power of attorne. It is initiated by power of attorney HOLDER, then the power of attorney and letter of authorized signatory must be on record of trial court. There was not even a single authorization letter, power of attorney or letter bearing seal and signatures of the Board of Directors of the Company, which authorize to institute complaint on behalf of the complainant is available before the trial Court, therefore, the complaint filed by the complainant is not maintainable

6. He further submits that complaint does not fulfil the basic ingredients of Section 141 of N.I. Act. The complaint as well as the statements are absolutely silent on the point, that on the date of issuance of the cheque or on the date on which the cheque was dishonoured, who was in charge or responsible, and looking after day to day affairs of the company. Hence, the complaint against the applicant is not maintainable.

7. In support of his argument learned counsel for the applicant placed reliance on the judgement of Hon’ble Supreme Court in the case of A.C. Narayan vs. State of Maharashtra and another, (2014) 11 SCC 790 wherein the Court had held as follows:-

“In the light of the discussion, we are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offenc