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2008 DIGILAW 671 (GAU)

Meghnath Saikia v. Xinmin

2008-09-09

H.N.SARMA

body2008
JUDGMENT H.N. Sarma, J. 1. Legality and validity of the appellate judgment and order dated 25.4.07 passed in Case No. 2867c/2000; 2868c/2000 and 2869c/2000 thereby affirmed the conviction but modified the sentence imposed upon the petitioner by the learned trial court in case No. 17,18 and 19/2004 is the subject matter of challenge in this batch of revision petition. The impugned judgment having been passed analogously and the learned Counsel having been agreed for disposal by a common judgment, these revision petitions are heard analogously and disposed of by this common judgment. 2. I have heard Mr. GP Bhowmik, learned Counsel for the accused/petitioner and Mr. A. Bora, learned Counsel who enters appearance on behalf of the complainant/respondent. 3. The complainant/respondent is a proprietorial firm and authorized dealer of BPL, Telecom Ltd. Products for the North East Region. During the course of business transaction, the accused petitioner being liable to pay certain amount to the complainant, the petitioner issued three different cheques from his existing account of the State Bank of India, Nagaon Branch on different dates i.e., on 15.6.2000 for Rs. 15,000/-; 20.7.2000 for Rs. 15,000/- and on 25.7.2000 for Rs. 12,257/- only. The cheques were drawn in the name of the complainant, M/s. Xinmin. The aforesaid cheque, being presented in the bank, were dishonoured by the bank. Thereupon complying with the necessary requirements relating to issuance of prior demand notice under Section 138 of the NI Act, these complaint cases were filed against the petitioner under Section 138 of the N.I. Act. 4. The learned trial court conducting the proceeding as per law, vide judgment and order dated 25.4.07 convicted the accused/petitioner under Section 138 of the NI Act in all the three cases and sentenced him to pay a compensation Rs. 30,000/- in default to suffer S.I. for six months in Case No. 2867(C)/2000, to pay a fine of Rs. 30,000/- and in default to suffer S.I. for six months in Case No. 2868(C)/2000 and to pay a fine of Rs. 24,000/- and in default to suffer S.I. for six months in Case No. 2869c/2000. It was further directed that if the fine is realized, be paid to the complainant as compensation. All the three complaint cases were disposed of by the aforesaid common judgment by the learned trial court i.e., Sub-Divisional Judicial Magistrate Guwahati. 5. 24,000/- and in default to suffer S.I. for six months in Case No. 2869c/2000. It was further directed that if the fine is realized, be paid to the complainant as compensation. All the three complaint cases were disposed of by the aforesaid common judgment by the learned trial court i.e., Sub-Divisional Judicial Magistrate Guwahati. 5. Being aggrieved, the aforesaid judgment was carried into appeals being Criminal Ap peals No. 17, 18 and 19 of 2004 in the court of learned Sessions Judge, Kamrup, Guwahati. The learned appellate court vide common judgment and order dated 20.6.08 maintained the conviction imposed by the learned trial court upon the petitioner but modified the sentence to the effect that the accused/petitioner is to pay fine of Rs. 5,000/- in default S.I. for three months and to pay a compensation of Rs. 25,000/- to the complainant in Criminal Appeal No. 27/08, to pay fine of Rs. 5,000/- in default S.I. for three months and to pay compensation of Rs. 25,000/- to the complainant in Criminal Appeal No. 28/07 and to pay a fine of Rs. 5,000/- in default S.I. for three months and to pay compensation of Rs. 19,000/- to the complainant in Criminal Appeal No'. 29/07. It was further directed that upon realization of fine and compensation, the same shall be paid to the complainant. Challenging the aforesaid judgment and order passed by the learned appellate court, a present criminal petitions have been filed by the aggrieved accused. 6. Mr. Bhowmik, learned Counsel for the petitioner, during the course of hearing, has raised the only issue to the effect that the complaint is not maintainable inasmuch as the same has not been filed by the persons aggrieved who should be or holder in due course but in fact it was filed by the Manager of the concerned firm who does not fall within the said categories and on that count alone the impugned judgment and orders are liable to be set aside. The learned Counsel contends that under Section 142 of the N.I. Act the cognizance of the case can be taken only when complaint in writing is made by the payee or as the case may be the holder in due course of the cheque. The learned Counsel contends that under Section 142 of the N.I. Act the cognizance of the case can be taken only when complaint in writing is made by the payee or as the case may be the holder in due course of the cheque. In the instant case the Manager not being the holder in due course of the cheque or the payee mentioned therein, is not entitled to institute the complaint and consequently, the learned trial court acted illegally and without jurisdiction in taking cognizance of the offence, filed by an authorised person. 7. Per contra, Mr. Bora, learned Counsel appearing for the complainant contends that in fact the complaint has been filed by the firm itself and the cheques in question having been issued in the said firm namely M/s Xinmin, and the complaint having been filed by the manager who is duly authorized to that effect, the cases are very much maintainable and no illegality has been committed by the learned court in taking cognizance of the offence and in passing the impugned judgments. 8. Submissions of the learned Counsel have been received due consideration of the court. 9. On the face of the submission of the learned Counsel the question that falls for decision in this case is that whether the learned trial court has acted without jurisdiction in taking cognizance of the offence under Section 138 of the NI Act on the basis of the complaint filed by the manager of the firm. Admittedly, the complaint was filed by the firm M/s Xinmin and the complainant was represented by its Manager, Sri Mridul Dev. In the very first paragraph of the complaint it has been stated that the Manager of the firm has authorised its manager, P.W. 1 to file such cases on behalf of the complainant firm. When the aforesaid Manager of the firm was examined as PW 1, the authority letter issued in his favour was exhibited as Exbt.-1, without any objection. The said authority letter is quoted herein below : To Whom It May Concern Authority Letter This is certify that we have authorized Mr. Mridul Deb, Manager Xinmin, to represent us in the Criminal case No. against M/s. Telewave, Nagaon, Assam in the court of Hon'ble Chief Judicial Magistrate, Guwahati. 10. The said authority letter is quoted herein below : To Whom It May Concern Authority Letter This is certify that we have authorized Mr. Mridul Deb, Manager Xinmin, to represent us in the Criminal case No. against M/s. Telewave, Nagaon, Assam in the court of Hon'ble Chief Judicial Magistrate, Guwahati. 10. The said document was admitted without any objection which contains the signature of the proprietor of the firm and signature of the Manager, PW 1 and it was duly exhibited. The objection regarding filing of the case through the Manager was also raised before the learned trial court but the same was rejected. The same question was also raised before the learned appellate court and the learned appellate court also negated the same after due consideration of the entire facts. 11. The issue further having been raised in this revision petition by the accused petitioner it lead me to scrutinize the legality and validity of the complaint filed by the complainant on the basis of the authority letter quoted above. Section 142 of the NI Act provides that no court shall take cognizable of the 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. Section 142 of the Act prefixed by a non-ostentate clause excluding provisions of criminal procedure code as regards taking cognizance. In the instant case, on a bare reading of the complaint itself it is found that in fact the firm M/s. Xinmin is the complainant but the same was filed through PW1 who is the Manager of the said firm. Ministerial act of filing was done by the PW 1, Manager. When a firm or a company is a complainant in such a case, the complaint must be through a corporal person who is capable of taking legal course in the court. Even if the complaint is made in the name of an incorporeal person it is necessary that a natural person represents. Such juristic person in the court and it is that natural person who is looked upon, for all practical purposes, to be the complainant in the case. In this respect reliance has been placed by the complaint on a decision of the Apex Court in Associated Cement Co. Such juristic person in the court and it is that natural person who is looked upon, for all practical purposes, to be the complainant in the case. In this respect reliance has been placed by the complaint on a decision of the Apex Court in Associated Cement Co. Ltd. v. Keshvanand reported in 1998 Cri LJ 856 wherein the Apex Court in paragraphs 22 and 23 has laid down as follows : 22. Chapter XV of the new Code contains provisions for lodging complaints with magistrate. Section 200 as the starting provision of that chapter enjoins on the magistrate, who take cognizance of an offence on a complaint, to examine the complainant on oath. Such examination is mandatory as can be discerned from the words "shall examine on oath the complainant..." The Magistrate is further required to reduce the substance of such examination to writing and it "shall be signed by the complaint". Under Section 203 the magistrate is to dismiss the complaint if he is of opinion that there is no sufficient ground for proceeding after considering the said statement on oath. Such examination of the complaint on oath can be dispensed with only under two situations, one if the complainant was filed by a public servant, acting on purporting to act in the discharge of his official duties and the other when a court has made the complaint. Except under the above understandable situations the complainant has to make his physical presence for being examined by the magistrate. Section 256 or Section 249of the new Code clothes the magistrate with jurisdiction to dismiss the complaint when the complainant is absent, which means his physical absence. 23. The above scheme of the new Code makes it clear that complainant must be a corporal person who is capable of making physical presence in the court. Its corollary is that even if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court and it is that natural person who is looked upon, for all practical purposes, to be the complainant in the case. In other words, 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. 12. In other words, 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. 12. On close scrutiny of Section 142(a) of the Act it discloses that the complaint should be in writing made by the payee or holder in due course of the same. From the record of the case more particularly, the complaint itself it is apparent that the payee itself is M/s. Xinmin who made complaint before the court through the Manager, who did only the ministerial act of filing. Mr. Bhowmik, learned Counsel for the petitioner does not dispute the proposition in law, in terms of the various decisions to the effect that the manager or any other person authorized by the company can represent it during the course of legal proceedings before the court. In fact in the case of Salar Solvent Extractions Ltd. v. South India Viscose Ltd. reported in 1994 (3) Crimes 295 the Hon'ble Madras High Court has held that such manager authorized by the company can represent in the legal proceeding as well as can file a complaint. Again the same High Court in M/s Ruby Leather Exports v. K. Venu reported in 1994 (1) Crimes 845 held to the effect that when the cheque stood issued in favour of a company, a complaint under Section 138 of the Act can be filed by its Manager, Partner, Director or any person authorized by the company. Mr. Bhowmik referring to the decision of the Punjab & Haryana High Court in the case of Meeta Rai (Smt.) v. Gulshan Mahajan reported in 1999 (3) Crimes 621 submits that the Exbt-1 is not a power of attorney executed in favour of the Manager, PW 1 by the said proprietor and in the absence of such power of attorney said authority is invalid in the eye of law and he is not entitled to act upon it. In the aforesaid decision, it has been held that in the absence of the power of attorney authorizing the concerned agent to file the case, the principal would be bound by the act and the learned Single Judge held that the complaint is not maintainable. With great respect I could not persuade myself to adopt the said view as subscribed. In the aforesaid decision, it has been held that in the absence of the power of attorney authorizing the concerned agent to file the case, the principal would be bound by the act and the learned Single Judge held that the complaint is not maintainable. With great respect I could not persuade myself to adopt the said view as subscribed. This is for two reasons namely, the NI Act does not provide for any provision for giving such authority through a power of attorney. Secondly, the power of attorney has no form and even on a letter of authority authorizing such person to file the case on his behalf of the authorized person is entitled to be acted upon. The aforesaid decision also is not in accordance with the spirit of the decision that has been decided by the Apex Court in the case of Associated Cement Co. Ltd. (supra) and the same does not come in assistance of the petitioner. Mr. Bhomik also contends that the Exbt-1 executed in favour of the Manager, PW 1 is not a stamped one and cannot be executed as a valid document. Exbt.-1 itself is a authority letter and the said authority is not required to be stamped nor it is not to be drawn up in any non-judicial stamp paper like a power of attorney. Had it been a power of attorney the same could have attracted the provision of the Indian Stamp Act but not in the case of authority letter as in the instant case. That apart, though the PW 1, Manager was cross-examined by the petitioner at length nothing could be elicited from him in this regard, even no attempt was made to discard his authority. In fact at the time of filing of the complaint itself the complainant has made it clear that the PW has been duly authorized to file the complaint. 13. Mr. Bora, learned Counsel appearing for the complainant/respondent has referred a decision reported in 2002 Cri LJ 266 M.M.T.C. Ltd and Anr. v. Medchi Chemicals and Pharma (P) Ltd. and Anr. which has got relevance to the issue involved in the aforesaid judgment the Apex Court at paragraphs 10 and 11 has held as follows : 10. In our view the reasoning given above cannot be sustained. v. Medchi Chemicals and Pharma (P) Ltd. and Anr. which has got relevance to the issue involved in the aforesaid judgment the Apex Court at paragraphs 10 and 11 has held as follows : 10. In our view the reasoning given above cannot be sustained. Section 142 of the Negotiable Instruments Act provides that a complaint under Section 138 can be made by the payee or the holder in due course of the said cheque. The two complaints, in question, are by the appellant Company who is the payee of the two cheques. 11. This Court has as far back as, in the case of Vishwa Mitter V.O.P. Poddar reported in (1983) 4 CCC 701, held 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 cognizance 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 makes any special provision for 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. This criterion is satisfied as the complaint is in the name and on behalf of the appellant Company. 14. In view of the above discussions I do not find any reason to adopt a different view on this point from what have been held by the learned court below : 15. At this stage, Mr. Bhomik submits that the fine in question imposed upon the petitioner is too severe taking note of the default of the aforesaid three cheques and accordingly the same day may be interfered with. But to accept this submission, no factual basis for lessening the fine and compensation has been laid down. The fine so imposed is within the prescribed limit under Section 138 of the NI Act. That apart, the cheques in question were issued in the month of July, 2000 and by now more than 8 years have been elapsed. 16. But to accept this submission, no factual basis for lessening the fine and compensation has been laid down. The fine so imposed is within the prescribed limit under Section 138 of the NI Act. That apart, the cheques in question were issued in the month of July, 2000 and by now more than 8 years have been elapsed. 16. Taking note of these facts and the scope and purpose of the underlying idea for inserting the provision of Section 138/142 of the N.I. Act, the prayer stands rejected. 17. In view of the above discussion, these revision petitions stand dismissed being devoid of any merit. Petition dismissed.