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2008 DIGILAW 1041 (MAD)

J. K. Industries Ltd. v. Babu

2008-03-24

A.SELVAM

body2008
Judgment :- The judgment dated 14.02.2001 passed in Criminal Appeal No.48 of 1998 by the Additional District and Sessions Court (Fast Track Court No.I), Madurai, is now under challenge. 2. The appellant herein as complainant has lodged the complaint in question under Sections 138 read with 142 of the Negotiable Instruments Act on the file of the Judicial Magistrate Court No.I, Madurai and the same has been taken on file in Calendar Case No.375 of 1995, wherein the present respondent has been shown as accused. 3. It is stated in the complaint that the complainant has been manufacturing tyres at Door No.82, Madurai-Aruppukottai Road and the same is being managed by its Assistant Area Manager by name Rajagopal. The said Rajagopal has been authorised to institute the present proceeding. The accused has been running a business under the name and style of Babu Tyres. From the year 1992 both the complainant and the accused are having business transactions. Under the said circumstances, the accused is bound to pay Rs.4,34,043/-to the complainant and in order to discharge the same, the accused has given the cheque in question and the same has been presented in the concerned bank for collection. The concerned bank has retuned the same stating funds insufficient and subsequently, a telegram as well as statutory notice have been given to the accused and even after receipt of the same, the accused has failed to discharge his liability. Under the said circumstances, he is said to have committed offence under Section 138 of the Negotiable Instruments Act. 4. On the side of the complainant, PWs.1 to 4 have been examined and Exs.P1 to P13 have been filed. When the accused has been questioned under Section 313 of the Code of Criminal Procedure, as respects the incriminating circumstances appearing in evidence against him, he denied his complicity in the crimes. On the side of the accused, DW1 has been examined and Exs.D1 to D5 have been filed. 5. The trial court, after considering the evidence available on record, has found the accused guilty under Section 138 of the Negotiable Instruments Act and sentenced him to undergo six months simple imprisonment. Against the conviction and sentence passed by the trial Court, the accused as appellant has preferred Criminal Appeal No.48 of 1998 on the file of the first appellate Court. 6. Against the conviction and sentence passed by the trial Court, the accused as appellant has preferred Criminal Appeal No.48 of 1998 on the file of the first appellate Court. 6. The first appellate Court, after reappraising the evidence available on record, has found that the complaint has not been properly filed and the Assistant Area Manager of the complainant has no locus standi to file the complaint and under the said circumstances, has allowed the appeal and consequently, set aside the conviction and sentence passed by the trial Court. Against the judgment passed by the first appellate Court, the present criminal appeal has been filed. 7. The learned counsel appearing for the appellant/complainant has contended with great vehemence that the Assistant Area Manager of the complainant has been delegated to institute the present proceeding and the first appellate Court has failed to consider the contention raised on the side of the complainant and erroneously set aside the conviction and sentence passed by the trial Court and therefore, the judgment passed by the first appellate Court is liable to be set aside. 8. In support of his contention, he has drawn the attention of the Court to the following decisions; (a) The first and foremost decision is reported in 1997(2) Crimes 115 (Sagayadurai Vs. J.D. Electronics) wherein this Court has held that the Court is empowered to take cognizance if complaint is preferred by the firm, a Company under Section 138 of the Negotiable Instruments Act, through the Manager of the Company. (b) The second decision is reported in 2005(2) CTC 417 ((K.Ramachandra Rao and others Vs. State of A.P., rep. by the Public Prosecutor and another) (Full Bench of the Andhra Pradesh High Court) wherein it has been held that a complaint under Section 138 of the Negotiable Instruments Act can be filed by duly appointed Power of Attorney Agent. 9. From the decisions referred to supra, it is made clear to the Court that a company can file a complaint under Section 138 of the Negotiable Instruments Act, by a duly appointed Power of Attorney Agent. 10. 9. From the decisions referred to supra, it is made clear to the Court that a company can file a complaint under Section 138 of the Negotiable Instruments Act, by a duly appointed Power of Attorney Agent. 10. The learned counsel appearing for the respondent/accused has also equally contended that the board of directors of the complainant have appointed the Regional Manager to look after its affairs and the Regional Manager has no locus standi to appoint the Assistant Area Manager viz., Rajagopal to institute the present proceeding and therefore, the complaint itself has been filed erroneously and the first appellate Court, after considering the above legal aspect, has rightly allowed the appeal and thereby set aside the conviction and sentence passed by the trial Court and therefore, the present criminal appeal deserves dismissal. 11. At this juncture, it would be more useful to look into Rule 174(3) of the Memorandum and Articles of Association of the complainant and the same reads as follows; “Subject to Section 292 of the Act, the Directors from time to time, and at any time, may delegate to any person so appointed, any of the powers, authorities and discretions for the time being vested in the Directors other than the power to make calls or to make loans to borrow moneys and may authorize the members for the time being of any such local Board, or any of them, to fill up any vacancies therein, and to act notwithstanding vacancies; and any such appointment or delegation may be made on such terms and subject to such conditions, as the Directors may think fit, and the Directors may at any time remove any person so appointed and may annul or vary any such delegation.” 12. From the close reading of the said Rule the delegation powers completely vests with the Directors and they can appoint any person to perform any act. In the instant case, the Directors of the complainant have not delegated any power to the Assistant Area Manager viz., Rajagopal to institute the present proceeding. Only the Regional Manger has delegated necessary power to the said Rajagopal to institute the present proceeding. 13. At this juncture, a nice legal question arises as to whether a delegate can further delegate. The axiomatic maxim is “Delecata Protestas non protest delegari”. Only the Regional Manger has delegated necessary power to the said Rajagopal to institute the present proceeding. 13. At this juncture, a nice legal question arises as to whether a delegate can further delegate. The axiomatic maxim is “Delecata Protestas non protest delegari”. The maxim lays down the general rule that an agent cannot delegate his powers or duties to another, in whole or in part, without the express authority of the principal or authority derived from the statute. 14. In the instant case, as noted down earlier, the Regional Manager has given necessary authorisation to the Assistant Area Manager to file the complaint. The Regional Manager is the delegate of the Board of Directors and he is nothing but a delegate and as per the maxim referred to earlier, he cannot delegate his power or duty in favour of the Assistant Area Manager. 15. In the light of the discussion made earlier, it is very clear that the present complaint has not been properly filed and the first appellate Court after considering the above legal aspect, has clearly held that the present complaint is not legally maintainable and therefore, the argument advanced by the learned counsel appearing for the appellant/complainant is sans merit and whereas the argument advanced by the learned counsel appearing for the respondent is really having attractive force. 16. In fine, this criminal appeal deserves dismissal and accordingly is dismissed. The judgment dated 14.12.2001 passed in Criminal Appeal No.48 of 1998 by the Additional District and Sessions Court (Fast Track Court No.I), Madurai is confirmed.