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2002 DIGILAW 1034 (MP)

Sudhir Jain v. Govindbhai Patel

2002-11-20

N.S.AZAD

body2002
Judgment ( 1. ) BY this common order, both the aforesaid Misc. Criminal Cases are being disposed of. ( 2. ) BY orders dated 30-8-2001 passed in Criminal Case Nos. 1287/1999 and 1288/99, the learned JMFC, Jabalpur, turned down this objection of the petitioner that the complaints are not filed by the competent person on behalf of the company. The petitioners challenge to aforesaid order, in his Criminal Revision Nos. 379/2001 and 380/2001, stood negatived by third ASJ, Jabalpur, on 17-4-2002, and hence, the petitioner seeks quashment of complaints registered as Criminal Case Nos. 1287/99 and 1288/99. ( 3. ) THE respondent filed each of the aforesaid complaints against this petitioner, in the Court of Smt. Usha Shrotriya, JMFC, Jabalpur, under Section 138 of the Negotiable Instruments Act, registered as Criminal Case Nos. 1287/99 and 1288/99, with these allegations that as consideration of the goods which are produced by respondent M/s. J. P. Patel (Mumbai) Pvt. Ltd. , Jabalpur (hereinafter referred as to the Company), of which Sudhir Jain is an attorney, this petitioner issued two cheques each for an amount of Rs. 31,000/- in favour of respondent, which, on being presented for encashment, are dishonoured by the company. The company authorised Govindbhai Patel, posted as Manager of the Company at Jabalpur, to file the private complaint on behalf of the company, who filed the complaints. ( 4. ) THE petitioner resisted the prosecution, on the ground that the complaint on behalf of the company, could have been filed by the company itself, therefore, this complaint filed by Govindbhai Patel, in his personal capacity, is liable to be rejected. The aforesaid objection did not weigh with the Trial Court, so also the Revisional Court, and hence, the petitioner has knocked the door of this Court seeking exercise of inherent powers. ( 5. ) IN M. M. T. C. Ltd. v. Medchl Chemicals and Pharma (P) Ltd. , reported in AIR 2002 SC 182 , their Lordships of the Supreme Court have usefully quoted the following view taken by the Apex Court in Vishwa Mitter v. O. P. Poddar, reported in (1983) 4 SCC 701 , (in para 11 at page 185) :- "that it is clear that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. It has been held that no Court can decline to take congizance on the sole ground that the complainant was not competent to file the complaint. It has been held that if any special statute prescribes offences and taking cognizance of such offences under the statute then the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute. In the present case, the only eligibility criterion prescribed by Section 142 is that the complaint must be by the payee or the holder in due course. " Then their Lordships further observed in para 12 of M/s. MM. T. C. Ltd. (supra) as under :- "12. In the case of Associated Cement Co. Ltd. v. Keshvanand, reported in (1998) 1 SCC 687 , it has been held by this Court that the corpplainant has to be a corporeal person who is capable of making a physical appearance in the Court. It has been held that if a complaint is made in the name of a incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the Court. It is held that the Court looks upon the natural person to be the complainant for all practical purposes. It is held that when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in Court proceedings. " ( 6. ) A perusal of para 7 of the order dated 17-4-2002 passed by the Revisional Court, in Criminal Revision Nos. 379/2001 and 380/2001, discloses that Govindbhai Patel is stated to have been authorised to file complaint on behalf of the Company vide resolution (Ex. P-1), which is staled in para 3 of the petition, and runs as under :- "certified true copy of the Resolution passed at Directors meeting held on 7-1-1999 at Sihora. "resolved that consequent upon cheques of company M/s. S. S. Carbons (P) Ltd. , Bhopal dishonoured by the Canara Bank, Maharana Pratap Nagar, Bhopal. A criminal suit under Section 138 of the Negotiable Instruments Act, be filed in the Court of competent jurisdiction at Jabalpur immediately against the Director of the Company Shri Sudhir Jain. "resolved that consequent upon cheques of company M/s. S. S. Carbons (P) Ltd. , Bhopal dishonoured by the Canara Bank, Maharana Pratap Nagar, Bhopal. A criminal suit under Section 138 of the Negotiable Instruments Act, be filed in the Court of competent jurisdiction at Jabalpur immediately against the Director of the Company Shri Sudhir Jain. Further resolved that Shri Govindbhai Somdas Patel be and is hereby authorised to file the aforesaid criminal case at Jabalpur on behalf of the company and take further necessary action in this regard. Date : 7-1-1999 Sd/- Shri Kiran H. Amin Place : Sihora Managing Director, J. P. Patel (Bombay) Pvt. Ltd. " Since all the dishonoured cheques are handed over by the Company to Govindbhai Patel, after authorising him to file the complaints against the petitioner, therefore, Govindbhai Patel is found to have filed these complaints, not in his personal capacity but in the capacity of a payee, on account of he being the holder of special power of Attorney, under aforesaid resolution, marked Ex. P-l. ( 7. ) THUS, in the light of aforesaid law laid down by the Apex Court in paras 11 and 12 of M. M. T. C. Ltd. v. Medchl Chemicals and Pharma (P) Ltd. (supra), on the strength of the aforesaid resolution which is Ex. P-l, Govindbhai Patel is found to be competent to file these complaints in his name also on behalf of the company, and hence, the Courts below are found to have committed no illegality in turning down this objection of this petitioner, that complaints are not filed by a competent person. ( 8. ) IN result, in the absence of patent illegality, the exercise of inherent powers, is not found necessitated in this case, hence, both these petitions are disallowed and rejected.