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2003 DIGILAW 718 (AP)

Ujwal Textiles v. V. N. Commercial Corporation

2003-06-10

S.R.K.PRASAD

body2003
S. R. K. PRASAD, J. ( 1 ) THE petitioners who are accused in c. C. No. 291 of 2001 on the file of II metropolitan Magistrate, City Criminal court, Hyderabad seek for quashing of the proceedings by invoking the inherent powers of this Court under Section 482 Cr. P. C. on the sole ground that GPA holder of Mr. Vijendra nath, has no right to present a complaint under Section 142 of N. I. Act for dishonouring of cheque bearing No. 021712 dt. 17-3-2001 amounting to Rs. 60,000/- drawn on Agroha bank (Agroha Co-operative Urban Bank limited), Rikabgunj Branch, which has been dishonoured, for insufficiency of funds. The learned Counsel for the 1st respondent contends that the complaint has been presented by a legal entity namely V. N. Commercial Corporation which is represented by a GPA holder and therefore the complaint is valid. It is also contended by her that Section 2 (d) of Cr. P. C. permits the companies to file complaints along with authorization letter in representative capacity, and the power of attorney has got the power to present a complaint representing the company under Cr. P. C. She further contends that the GPA holder is working as an accountant and he knows all the transactions and therefore, he is entitled to present the complaint. Reliance is placed by her on the following decisions. SK Abdur rahim v. Amal Kumar Banerjee and State of w. B. 1, Hamsa v. Ibrahim2, Rajan George v. State of Kerala3 and Ruby Leather Exports v. K. Venu4. ( 2 ) ADVERTING to the same, Section 138 and 142 of N. I. Act reads as follows: 138. Dishonour of cheque for insufficiency, etc. SK Abdur rahim v. Amal Kumar Banerjee and State of w. B. 1, Hamsa v. Ibrahim2, Rajan George v. State of Kerala3 and Ruby Leather Exports v. K. Venu4. ( 2 ) ADVERTING to the same, Section 138 and 142 of N. I. Act reads as follows: 138. Dishonour of cheque for insufficiency, etc. of funds in the account:- Where any cheque drawn by a person on an account maintained by him with an banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed and offence and shall, without prejudice to any other provisions of this act, be punished with imprisonment for a terms which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: provided that nothing contained in this section shall apply unless (A) the cheque has been presented to the bank within a person of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (B) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawn of the cheque, of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (C) the drawn or such cheque fails to makes the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation:- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. 242. Explanation:- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. 242. Congnizance 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; (b) such complaint is made within one month of the date on which the cause- of-action arises under clause (c) of the proviso to Section 138; provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making complaint within such period. (c) no Court inferior to that of a metropolitan Magistrate or a Judicial magistrate of the first class shall try offence punishable under Section 138. ( 3 ) IT is stated in S. P. Sampathy v. Manju gupata and another5, that the complaint has to be filed in the name of payee and only he has to sign it and it cannot be signed by the GPA holder. It is also stated that the GPA cannot be a holder in due course. This Court has interpreted Section 142 of N. I. Act. A close scrutiny of the language in Section 142 of the n. I. Act clearly shows that the complaint has to be presented by the payee in writing or the holder in due course. Moreover, the payee sworn statement has not been recorded in this case. It is stated in SK. Abdur Rahim s case that there is nothing wrong in the making of the complaint under Section 142 of the Act by the authorized agent of the payee on the basis of the power of attorney executed by the payee in his favour in this respect. It is stated in Hamsa s case as follows: for holding that the power of attorney holder of a payee can lodge a complaint under Section 142 of the Act, the Court observed in para 7 as under:para 7: In considering the question involved here legal position regarding the right of a person to appoint another as his agent to be understood at lest in a general manner. According to the law of england "every person who is sul juris has a right to appoint an agent for any purpose whatever and that he can do so when he is exercising a statutory right no less than when he is exercising any other right. This was recognized as a common law, when a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it. The Supreme Court has declared in a decision that the law in india is also the same. (Vide Revulu Subba rao v. IT. Commissioner, AIR 1956 SC 604 , venkatarama Ayyar, J. , in the said decision has observed that the said rule is subject to certain well known exceptions such as, when the act to be performed personal in character, when the act to be performed is annexed to a public officer or to an office involving any fiduciary obligation. "but apart from such exception, the law is well settled that whatever a person can do himself, he can do through and agent" observed the learned Judge in the said decision. The above can thus be regarded as the legal position regarding the right to appoint an agent. "it is stated in Rajan George s case as follows: negotiable Instruments Act, 1881, sections 138 and 142 - Criminal Procedure code, 1973, Sections 200 and 190 - dishonour of Cheque - Private complaint - Personal presence of the complainant is not mandatory - complaint can be filed by the his advocate or power of attorney". It is stated in Ruby Leather Exports that a power of Attorney Agent of the payee or the holder in due course of the cheque, will be competent to make a complaint in writing under Section 142 (a) of the Act, to facilitate valid cognizance being taken by the magistrate. ( 4 ) IT is contended by the learned Counsel for the petitioner V. N. Commercial corporation is Proprietary concern and mr. Vijendra Nath is a Proprietor and admittedly he has not signed the complaint in this case, and therefore, the complaint itself is bad as it is not presented in accordance with Section 142 of N. I. Act. What is stated in section 142 is that payee has to signin writing. Vijendra Nath is a Proprietor and admittedly he has not signed the complaint in this case, and therefore, the complaint itself is bad as it is not presented in accordance with Section 142 of N. I. Act. What is stated in section 142 is that payee has to signin writing. Payee is not a company in this case and payee is V. N. Commercial Corporation which is a Proprietary concern. The Proprietor Mr. Vijendar Nath has not signed the complaint and his sworn statement is not recorded. Only the sown statement of GPA has been recorded and the complaint is signed by the gpa holder. Can it be said that payee in writing has to present a complaint mean and includes power of attorney holder. If the legislature intends to extend such a benefit to power of attorney holder, it could have incorporated the same in specific words in section 142 of N. I. Act. The non-mention of words power of attorney holder or agent of payee for presenting the complaint clearly goes to show that the legislature did not contemplate of presentation of such complaints. I am also of considered view there is a lacuna in the Act. It is not for this court to fill up the gap. It is for the legislature to take note of it and incorporate necessary amendments by permitting the power of attorney or persons to present the complaints in writing under N. I. Act. More over, the interpretation put to Section 2 (d) of Cr. P. C. cannot be extended to N. I. Act, as special procedure has been contemplated under N. I. Act for presentation of complaints are- concerned. In that view of the matter i respectfully disagree with the contention of the learned Counsel for the 1st respondent i also find that the complaint is not properly presented within the meaning of Section 142 of N. I. Act. The complaint has to be invariably signed by the sole proprietor and it cannot be signed by the power of attorney holder. The said section has been rightly interpreted by the Division Bench of this Court and the decision rendered therein squarely covers to the facts of this case. Therefore, I follow the principles laid down in the aforesaid decision (S. P. Sampathy v. Manu Gupta) rendered by this Court. The said section has been rightly interpreted by the Division Bench of this Court and the decision rendered therein squarely covers to the facts of this case. Therefore, I follow the principles laid down in the aforesaid decision (S. P. Sampathy v. Manu Gupta) rendered by this Court. This Court has to strictly interpret section 142 which is a special enactment and it cannot permit the GP A holder to have asay in the matter as presentation of complaint by the GPA holder is not contemplated under section 142 of N. I. Act, and it has to be presented only by the Proprietary concerned and also the persons representing the company in writing and whoever dealt with the cheques. In view of the interpretation put on this Court in the aforesaid decision as well as by me, I find that the complaint is not maintainable. The complaint is liable to be quashed for non presentation of the same by the Proprietary concerned namely vijendranath and also for the failure to record the sworn statement of Vijendranath, who is the best Person to speak about the cheque dealings. In that view of the matter also, the proceedings are liable to be quashed. I accordingly quash the impugned proceedings initiated against the petitioners. ( 5 ) IN the result, this Criminal Petition is allowed. At this stage, the learned Counsel for the 1st respondent seeks leave to move supreme Court. It is a case of interpreting, including this Court. It involves complicated question of law and interpretation of the provisions. Hence, leave is granted to prefer appeal to the Supreme Court.