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2009 DIGILAW 339 (JK)

Jaindra Manilal Tanna v. Ab. Aziz Lokhandwala

2009-07-16

MUZAFFAR HUSSAIN ATTAR

body2009
1. Through these two petitions filed u/s 561-A Cr.P.C quashment of complaints pending on the files of ld. Judicial Magistrate Ist Class Baramulla is sought. 2. The facts in brief as narrated in the petitions/ complaints are that the respondent had obtained financial assistance from the Central Bank of India and some proceedings about same were pending before Debts Recovery Tribunal, Mumbai. It is further pleaded in the complaint that because of the alleged misconduct of counsel engaged to defend the respondent in the said proceedings an ex-parte judgment was passed against the complainant. It is further pleaded that the engaged counsel did not even file appeal against the ex-parte judgment. It is further averred in the complaint that the petitioner and respondent arrived at memorandum of understanding for one time settlement of the case of the respondent with the Central Bank of India. It was agreed upon that in lieu of one time settlement, the petitioner will be entitled to receive substantial amount details whereof have been given in the memorandum of understanding. It is further averred that respondent, accordingly, issued cheques of different amounts in the name of Chandini Agencies of which petitioner is owner. It was also agreed in the memorandum of understanding that in case one time settlement will not sail through then the amount received by petitioner will be returned to the respondent. It is further averred that as the petitioner failed to perform his part of duty, he in terms of the memorandum of understanding by way of liquidation of debt/liability issued eight cheques in the amount of Rs.5 lacs each in favour of the respondent. Two cheques bearing No. 158570 and 158572 amounting to Rs.5/- lacs each are subject matter of two complaints which are sought to be quashed. Both the cheques were presented for encashment and collection of amount in J&K Bank Ltd branch K.B. Adda Baramulla. The J&K Bank branch office K.B Adda Baramulla, however, returned the cheques with the memo having endorsement "exceeds arrangement". The notice in both the cases were issued and thereafter complaints filed at Baramulla. The record reveals that the ld. Both the cheques were presented for encashment and collection of amount in J&K Bank Ltd branch K.B. Adda Baramulla. The J&K Bank branch office K.B Adda Baramulla, however, returned the cheques with the memo having endorsement "exceeds arrangement". The notice in both the cases were issued and thereafter complaints filed at Baramulla. The record reveals that the ld. Judicial Magistrate /Sub Judge Baramulla after considering the complaint(s), preliminary statement of complainant as also after perusal of the documents was prima facie satisfied about the commission of offence u/s 138 of Negotiable Instrument Act of 1881 (for short `Act of 1881), process was accordingly issued against the petitioner for his appearance before ld. Judicial Magistrate in both the cases. Both complaints were filed through attorney. The petitioner seeks quashment of complaints. 3. Heard ld. counsel for parties. Considered the matter. 4. Mr. G.A. Lone, ld. counsel for petitioner while arguing the case inter alia stated that the complaint does not disclose commission of offence. Complaint is barred by time and complaint is filed by incompetent person. Ld. counsel referred to and relied upon case titled "Musaraf Hossain Khan v. Bhagheeratha Engg. Ltd & Ors", reported in JT 2006 (3) SC 80 and case titled "M/s Harnam Electronics (p) Ltd and anr v. National Panasonic India Ltd." reported in AIR 2009 SC 1168; case titled Inderjeet Kour, petitioner v. M/s Gandotra Trading & Leasing Corpn., Jammu, respondent" reported in 1998 CRI. L.J. 2659. The ld. counsel while referring to the record submitted that by mere sending of notice from Baramulla, court at Baramulla would not get jurisdiction to entertain the complaint, take cognizance of offence and issue process. Ld. counsel further submitted that the complaints are bereft of details as to when the cheque was presented to the J&K Bank branch Baramulla, when the memo was issued by said bank as also when the notice was issued. The ld. counsel submitted that as all these details are not contained in the complaint so it does not disclose the commission of offence. The ld. counsel further submitted that first notice was issued on 17th July 2007, thereafter another notice was issued on 2nd of August 2007 and complaint was filed thereafter on 27th August 2007 as such complaints are filed beyond the period of limitation as provided in Section 142 of the Act of 1881. The ld. The ld. counsel further submitted that first notice was issued on 17th July 2007, thereafter another notice was issued on 2nd of August 2007 and complaint was filed thereafter on 27th August 2007 as such complaints are filed beyond the period of limitation as provided in Section 142 of the Act of 1881. The ld. counsel further submitted that the complaints having been filed through attorney which mode of filing the complaints is not permissible in law require to be quashed. 5. The ld. counsel for the respondent Mr. R.A. Jan, while defending the action of ld. Magistrate of taking cognizance and issuance of process submitted that the power u/s 561-A Cr.P.C is to be exercised in rarest of rare cases and the cases in hand do not fall in such category. It is further submitted by the ld. counsel that the ld. Magistrate while taking cognizance of offence and issuing the process has considered the complaint, preliminary statement and other material which includes copies of the notice etc., as such the proceedings do not warrant to be quashed. The ld. counsel further submitted that the issues which have been raised in this petition, require to be considered and decided at the trial and the criminal proceedings in the attendant facts and circumstances of this case cannot be ordered to be closed at pre-trial stage. The ld. counsel further submitted that the complaint filed through attorney is valid complaint and does not suffer from any illegality on this count. The learned counsel has referred to and relied upon case titled "Dalmia Cement (Bharat) Ltd. Appellant v. Galaxy Traders and Agencies Ltd and ors, Respondents", reported in (2001) 6 SCC 463; case titled "D. Vinod Shivappa, Appellant vs. Nanda Belliappa, Respondent" reported in (2006) 6 SCC 456; case titled "M/s Shankar Finance & Investments v. State of Aandra Pradesh and ors" reported in AIR 2009 SC page 422 as also case titled "Smt. Shamshad Begum v. B. Mohammed" reported in JT 2008 (II) SC 428. 6. The allegations contained in a complaint must contain particulars which would disclose commission of offence. The complaint may not contain all the facts. The complaint is a device to set into motion criminal proceedings. All the facts which constitute commission of offence are required to be proved at the trial of the case. The judgment referred to by ld. 6. The allegations contained in a complaint must contain particulars which would disclose commission of offence. The complaint may not contain all the facts. The complaint is a device to set into motion criminal proceedings. All the facts which constitute commission of offence are required to be proved at the trial of the case. The judgment referred to by ld. counsel for the petitioner, Inderjeet Kours case (supra) provide that the date of issuance of notice as also the receipt thereof having not been mentioned in the complaint, the complaint was not competent as it was shorn of necessary factual details. The Honble Supreme Court in case titled "Rajesh Bajaj, Appellant v. State NCT of Delhi and ors, Respondents" reported in AIR 1999 SC 1216, has ruled that a complainant need not require to reproduce verbatim all the ingredients of the offence alleged in the body of the complaint. It was further ruled that splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not required at the initial stage. It was further held that when factual foundation in the complaint has been laid the court should not hasten to quash the proceedings. Para 9 of the judgment is reproduced as under: - "9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. In State of Haryana @page-SC 1218 v. Bhajan Lal (1992 AIR SCW 237) (supra) this Court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder (para 109 of AIR) : "We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice." 7. The law laid down by the Honble Supreme Court in the said judgment is to be followed by this court and all courts through out territory of India in terms of Article 141 of the Constitution of India. The plea that all material facts are not detailed in the complaint, thus cannot make a ground for quashing the complaint as all the material facts which constitute the offence are to be proved at the trial by leading evidence. 8. In D. Vinod Shivappas case it was held by the Honble Supreme Court that where notice is issued, the cause of action to file complaint arises on the expiry of the period prescribed for payment by drawing of the cheque. It was stated that a complaint u/s 138 of the Act of 1881 can be defeated by employing many methods by the accused. Uncouth attempts can also be made to render the complaint incompetent on the ground of being barred by time. 9. The Honble Supreme Court held that such a criminal complaint cannot be quashed. It would be premature at the stage for issuance of process to move High Court for quashing the proceedings. These questions being questions of fact are to be decided on the basis of the evidence during trial of the case. 9. The Honble Supreme Court held that such a criminal complaint cannot be quashed. It would be premature at the stage for issuance of process to move High Court for quashing the proceedings. These questions being questions of fact are to be decided on the basis of the evidence during trial of the case. In this case notice was issued which was within time, but it was mentioned that the petitioner had left the place. Thereafter in order to be fair to the petitioner and allow him opportunity to pay the amount, yet another notice was sent on the address where petitioner had shifted. The petitioner for his bonafide act of providing opportunity in consonance with the mandate of Section 138 of Act of 1881, cannot be non suited by holding that the complaint is time barred. Since these issues fall in the factual realm of the case require adjudication at trial. In almost identical circumstances the Honble Supreme Court in Dalmia Cements case held that the complaint to be within time. In that case second notice was issued after the accused had said that he had received only empty envelop. 10. The challenge thrown to the competence of ld. Judicial Magistrate Baramulla to deal with the complaint on the ground of territorial jurisdiction is not countenanced in law in the facts of this case. The ld. counsel referred to the case of Musaraf Hossain Khans and Harnam Electronics (P) Ltds case to state that court lacks jurisdiction. In the earlier case the accused had send cheques from Ernakulum and on that basis writ petition was filed in the High Court of Kerala seeking quashment of the complaint filed in the Court of ld. Chief Judicial Magistrate Birbhum at Suri West Bengal. The facts of the said case reveal that cheque was deposited with the Bank Suri branch but was returned by the banker stating "full cover not received" and payment notice was sent. The said judgment in fact supports the case of the respondent. The respondent deposited the cheque at J&K Bank B/O Baramulla, memo indicating non payment of cheque amount was delivered at Baramulla to the respondent and notice of payment was also issued from Baramulla. The Ld. Judicial Magistrate at Baramulla had thus jurisdiction to entertain the complaint. 11. The said judgment in fact supports the case of the respondent. The respondent deposited the cheque at J&K Bank B/O Baramulla, memo indicating non payment of cheque amount was delivered at Baramulla to the respondent and notice of payment was also issued from Baramulla. The Ld. Judicial Magistrate at Baramulla had thus jurisdiction to entertain the complaint. 11. In Harmans case only notice was issued from the Delhi and Honble Supreme Court was not sure even as to whether the said notice was issued from Delhi when all other acts had taken place at Chandigarh. In this back drop the Honble Supreme Court held that the Court at Delhi where complaint has filed was lacking jurisdiction to entertain the complaint. This Bench had occasion to consider the like issue raised in case Prianka Overseas Pvt. Ltd v. J&K Bank ltd. and ors (561-A No. 69/09 Cr.MP No. 145) decided on 16.06.09. This Bench repelled the like contentions raised, the relevant part of the judgment is reproduced as under: - "However, there is an another facet to these proceedings which need to be unveiled. M/s Harnam Electronics Pvt. Ltd case which is referred to and relied upon by the ld. counsel for the petitioner proceeded on the facts which are narrated in the said judgment. For appreciating the same, paras 12, 13, and 22 are reproduced as under: - "12. Indisputably, the parties had been carrying on business at Chandigarh. The Head office of the complainant-respondent may be at Delhi but it has a branch office at Chandigarh. It is further more not in dispute that the cheque was issued and presented at Chandigarh. The complaint petition is totally silent as to whether the said cheque was presented at Delhi. As indicated hereinbefore, the learned counsel appearing on behalf of the complainant-respondent contended that in fact the cheque was put in a drop box but as the payment was to be obtained from the Delhi Bank, it was sent to Delhi. The complaint petition is totally silent as to whether the said cheque was presented at Delhi. As indicated hereinbefore, the learned counsel appearing on behalf of the complainant-respondent contended that in fact the cheque was put in a drop box but as the payment was to be obtained from the Delhi Bank, it was sent to Delhi. In support of the said contention, a purported certificate issued by the Citi Bank NA has been enclosed with the counter affidavit, which reads as under: - "This is to confirm that M/s National Panasonic India Pvt. Ltd. (NPI) having registered office at AB-II, Company Centre, Safdarjung Enclave, New Delhi-110029 are maintaining a current account No. 2431009 with our Bank at Jeevan Bharti Building, 3, Parliament Street, New Delhi-110001 only and not at any other place in India including Chandigarh. Further confirmed that CITI Bank has provided the facility for collection of cheques/Demand Drafts from branches of NPI located at various places/cities in India. However, all amounts of cheques/Demand Drafts so collected on behalf of National Panasonic India Private Limited are forwarded and debited/credited to the aforesaid Current Account No. 2431009 without our Bank at Jeewan Bharti Building, 3, Parliament Street, New Delhi-110001." 13. The complaint petition does not show that the cheque was presented at Delhi. It is absolutely silent in that regard. The facility for collection of the cheque admittedly was available at Chandigarh and the said facility was availed of. The certificate dated 24.06.2003, which was not produced before the learned court taking cognizance, even if taken into consideration does not show that the cheque was presented at the Delhi Branch of the CITI Bank. We, therefore, have no other option but to presume that the cheque was presented at Chandigarh. Indisputably, the dishonor of the cheque also took place at Chandigarh. The only question, therefore, which rises for consideration is that as to whether sending of notice from Delhi itself would give rise to a cause of action for taking cognizance under the Negotiable Instrument Act. 22. In Y.A. Ajit v. Sofana Ajit (AIR 2007 SC 3151), this court held: "The crucial question is whether any part of the cause of action arose within the jurisdiction of the concerned Court. In terms of Section 177 of the Code it is the place where the offence was committed. 22. In Y.A. Ajit v. Sofana Ajit (AIR 2007 SC 3151), this court held: "The crucial question is whether any part of the cause of action arose within the jurisdiction of the concerned Court. In terms of Section 177 of the Code it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused. While in civil cases, normally the expression "cause of action" is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression "cause of action" is therefore not a stranger to criminal cases." 12. Reading all the above reproduced paras in-conjunction what emerges is that the transactions in the said case were carried at Chandigarh alone. The cheque was issued and presented at Chandigarh. The complaint was silent as to whether the said cheque was presented at Delhi. Facility of collection of cheque admittedly available at Chandigarh was availed of. The certificate dated 24th June 2003 was not produced before ld. court and same did not show that the cheque was presented at Delhi branch of City Bank. The Honble Supreme Court presumed in this fact situation that the cheque was presented at Chandigarh and admittedly dishonor of the cheque took place at Chandigarh. 13. Another fact to be noticed from the said judgment is that not only the issuance of the notice but the service thereof was also said to be imperative. 14. The present case on facts has admittedly differential features, like admittedly the cheque was presented at Srinagar, the memo stating that cheque could not be encashed was also received at Srinagar, the notice was also issued at Srinagar, the service whereof has been admitted by the petitioners. 15. In the M/s Harnam Electronics Pvt. Ltds case it was only the notice which was sent from Delhi which claim was also under cloud and it was not also sure as to whether the notice was received by the accused and all other acts had taken place at Chandigarh. 15. In the M/s Harnam Electronics Pvt. Ltds case it was only the notice which was sent from Delhi which claim was also under cloud and it was not also sure as to whether the notice was received by the accused and all other acts had taken place at Chandigarh. It is in this factual scenario that the Honble Supreme Court held that Court at Delhi had no jurisdiction to entertain the complaint and it was court at Chandigarh which alone had the jurisdiction to entertain the complaint. These discernible distinguishing factors in the two cases make it writ large on the face of the record that judgment in "M/s Harnams case" would not govern the facts of this case. The Honble Supreme Court in case Bhavnagar University, appellant v. Palitana Sugar Mill Pvt. Ltd. and ors, respondents reported in (2003) 2 SCC 111, has ruled that a decision is an authority for what it decides and not what can logically be deduced therefrom. A little difference in facts or additional facts may make lot of difference in a precedential value of a decision to make it binding precedent under Article 141 of the Constitution. Para 59 of the said judgment is reproduced as under: - "59.A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. [See Ram Rakhi v. Union of India, Delhi Admn. (NCT of Delhi) v. Manohar Lal, Haryana Financial Corpn. Vs. Jagdamba Oil Mills and Nalini Mahajan (Dr) v. Director of Income Tax (Investigation).] The Honble Supreme court in yet another case titled Regional Manager and ors, appellant v. Pawan Kuamr Dubey, respondent, reported in AIR 1976 SC 1766 has taken same view and relevant para 7 is reproduced as under:- "7. We think that the principles involved in applying Article 311 (2) having been sufficiently explained in Shamsher Singhs case (AIR 1974 SC 2192) (supra ) it should no longer be possible to urge that Sughar Singhs case (AIR 1974 SC 423) (supra) could give rise to some misapprehension of the law. We think that the principles involved in applying Article 311 (2) having been sufficiently explained in Shamsher Singhs case (AIR 1974 SC 2192) (supra ) it should no longer be possible to urge that Sughar Singhs case (AIR 1974 SC 423) (supra) could give rise to some misapprehension of the law. Indeed, we do not think that the principles of law declared and applied so often have really changed, But, the application of the same law to the differing circumstances and facts of various cases which have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would we think vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts". 16. The conclusions of the judgment in M/s Harnams case (supra) will thus not be applicable and extended to the present case. 17. The case in hand is squarely covered by judgment of the Honble Supreme Court in case titled Smt. Shamshad Begum v. B. Mohammed reported in JT 2008(11) SC 428. The said judgment is based on law laid down by the Honble Supreme court in an earlier judgment reported in JT 1999 (7) SC 558. The Honble Supreme Court while referring to the earlier judgment in K. Bhaskarans case has concluded that the offence u/s 138 of the Act of 1881 can be completed only with the concatenation of a number of acts. The acts which are to be components of offence were delineated as follows: i) Drawing of the cheque; ii) Presentation of the cheque to the bank; iii) Returning of cheque unpaid by drawee bank; iv) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; v) Failure of the drawer to make payment within 15 days from receipt of the notice. 18. 18. In the said case the jurisdiction of the Manglore Court was challenged interalia on the grounds that agreement between the parties was entered into at Banglore and the parties lived in Manglore, cheque was returned from the banks at Banglore, therefore, Banglore court had jurisdiction to try the case. In the said case the notice was issued from Manglore and the reply was received at Manglore, the challenge to the jurisdiction of the court at Manglore was thus negatived. 19. Section 182 of the Code of Criminal Procedure Svt. 1989 is reproduced as under:- "Place inquiry or trial where scene of offence is uncertain or not in one district only; or where offence is continuing, or consists of several acts. When it is uncertain in which of several local areas an offence was committed, or Where an offence is committed partly in one local area and partly in another; or Where an offence is a continuing one; and continues to be committed in more local areas than one; or Where it consists of several acts done in different local areas; it may be inquired into or tried by a Court having jurisdiction over any of such local areas." The said provision provides that an offence can be enquired into and tried by the court having jurisdiction over in all such local areas where, interalia, any of the acts is performed. The offence u/s 138 of the Act of 1881 having been held to be concatenation of number of acts some of which have taken place at Srinagar, Court at Srinagar has thus jurisdiction in terms of the statute to hear and try the complaint." 20. The issue raised as to whether complaint filed by attorney is competent or not, is no longer res-integra in view of the law laid down by the Honble Supreme court which has been followed by this Bench in case titled Sunil Choudhary and anr vs. Alisha Enterprises (561-A Cr.MP 69/09). The relevant portion of the judgment is reproduced as under: - "Ld. Counsel for petitioner while referring to section 138 as also section 142 of the Act of 1881 argued that taking of cognizance and issuance of process in the complaint which was filed by attorney holder is bad in law, as same is not envisages by section 142 of the Act of 1881. Ld. Counsel for petitioner while referring to section 138 as also section 142 of the Act of 1881 argued that taking of cognizance and issuance of process in the complaint which was filed by attorney holder is bad in law, as same is not envisages by section 142 of the Act of 1881. Ld. Counsel submitted that; a) Section 142 of the Act of 1881 provides that notwithstanding anything contained in the Code of Criminal Procedure no court shall take cognizance of any offence punishable u/s 138 of the Act of 1881 except upon complaint in writing made by the payee or as the case may be, the holder in due course of cheque; b) such complaint be made within one month of the date on which the cause of action arise. 21. The ld. Counsel would canvass that the complaint having not been filed by payee or the holder of the cheque but by attorney holder, the cognizance could not have been taken. The ld. Counsel further submitted that it is on this short legal ground that the complaint as also proceedings initiated thereon being an abuse of process of trial court require to be quashed. Ld. Counsel in support of his contention has referred to judgment reported in AIR 2008 (NOC) 2539 (ALL.) and the judgment of Madras High Court reported in 2005 (1) Crimes 423. 22. In both the judgments it is held that the complaint having not been signed by the payee but by attorney holder who cannot be either said to be payee or holder in due course, was disentitled to file complaint. 23. The amendment in section 138 of the Act of 1881 was inserted by Act of 66 of 1988 which made dishonor of the cheque for insufficiency etc funds in the account to be an offence. The purpose of making the said amendment is to achieve the solemn object of preventing fraudulent acts by borrowers of money. It is a common knowledge that when a person borrows money or incur debt and on refusal to re-pay the same, the only legal course open to the lender was to institute a civil original suit for seeking recovery of the borrowed money. It is also common knowledge that civil suit take some time in getting settled for variety of reasons. It is also common knowledge that civil suit take some time in getting settled for variety of reasons. In order to ensure that the borrowed money is repaid without creating any hassles the amendment was made in the Act of 1881. The said amendment in the Act of 1881 reveals one other facet viz to enthuse and instill morale behavior in business dealings. Economy of nations and countries can survive only when the people follow morale values in economic dealings. If a person, for whatsoever, reasons advances money on the promise that it will be repaid, may himself be reduced to a pauper in case the money is not paid back. Assume a situation that business man is persuaded to advance substantial part of his money to another person as loan and that borrowed money is not repaid, it has the potential of collapsing the business of the lender. The immoral activities in economic field, has potential of not only collapsing business concern but has the monstrous power of destabilizing economic strength of countries. Such efforts of the unscrupulous borrowers have to be dealt with strenuously and law has to come down with heavy hand on such elements of the society. 24. Viewed thus, the purpose to be achieved by amendment incorporated in the Act of 1881 cannot be sought to be defeated on the technical grounds. A person who borrows money and thereafter in the discharge of the debt or liability issues a cheque, and subsequently by any mode frustrates payment thereof, cannot be permitted to wriggle out of his liability to discharge the debt and commitment to repay the same on pure technical pleas. If the hyper-technical pleas are accepted then it will be not only protecting a fraud and an immoral act but would also tantamount to perpetuating the same through process of the court. 25. The provisions of law are to be interpreted in a manner which allow to achieve the purpose underlying such statute or provisions of Statutes. 26. In this case, Smt. Rashmi Gupta is the person from whom the money was borrowed. She is the named complainant in the complaint and she was disabled to personally appear before the court because of health reasons. The complaint was filed on her behalf by her attorney holder, otherwise being Manager Accounts of the complainants company was fully aware about the financial affairs of the respondent. She is the named complainant in the complaint and she was disabled to personally appear before the court because of health reasons. The complaint was filed on her behalf by her attorney holder, otherwise being Manager Accounts of the complainants company was fully aware about the financial affairs of the respondent. The complaint is filed by complainant who is payee/or holder in due course. 27. Under section 142 of the Act of 1881 the ld. Magistrate is to take cognizance of offence when he gets information about the same. Section 190 Cr.P.C provides that ld. Magistrate to take cognizance of offence on report made by police agency or on complaint made by person or otherwise. The purpose underlying section 142 of the Act of 1881 is complied with in this case as the complaint has been filed and Smt. Rashmi Gupta is named complainant. On complaint the ld. Magistrate being satisfied about commission of the offence has taken cognizance thereof and has also ordered for issuance of process. There is nothing wrong in law which can be said to have been committed by the ld. Magistrate. In this case Smt. Rashmi Gupta has been permitted to prosecute the complaint herself, no grievance could be made by petitioners about the same. The judgment referred to by ld. Counsel for petitioners with great respect cannot be followed. The said judgment otherwise also would not be followed in view of the law laid down by Honble Supreme Court in case titled M/s. Shanker Finance & Investments v. State of A.P and other reported in AIR 2009 422. In this case the facts were almost identical as the complaint under section 138 of Act of 1988 was filed through Manager. The Honble Supreme Court held that there is a compliance with section 142 of the Act of 1881 and accordingly held complaint to be maintainable. The relevant portion para 6, 10 to 12 are reproduced as under: - "6. In MMTC Ltd. Vs. MEDCHL Chemicals and Pharama (P) Ltd, m 2002 (1) SCC 234, a complaint was filed by MMTC Ltd. through the Manager of its Regional Office. Subsequently, the Manager was substituted by Dy. General Manager who was duly authorized. The relevant portion para 6, 10 to 12 are reproduced as under: - "6. In MMTC Ltd. Vs. MEDCHL Chemicals and Pharama (P) Ltd, m 2002 (1) SCC 234, a complaint was filed by MMTC Ltd. through the Manager of its Regional Office. Subsequently, the Manager was substituted by Dy. General Manager who was duly authorized. The High Court held that the complaint was not maintainable as it was signed and presented by a person, who was neither an authorized agent nor a person empowered under the articles of association or by any resolution of the Board to do so. It held that only the Executive Director of MMTC Ltd. had the authority to institute legal proceedings. Reversing the said decision, this Court held: "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. This Court Vishwa Mitter v. O. P. Poddar, (1983) 4 SCC 701, held that it is clear that anyone can set the criminal law in motion by filling a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. It has held that no court can decline to taken cognizance on the sole ground that the complaint 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 complaint re-questioning the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the Statute. In the present case, the only eligibility criteria prescribed by Section 142 is that the complaint must be by the payee or the holder in due course. This criteria is satisfied as the complaint is in the name and on behalf of the appellant company. 28. Referring to the decision in Associated Cement Co. Ltd. v Keshwan and [1998 (10 SCC 6871]. this Court held: "It has further been held that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, along can continue to represent the company till the end of the proceedings. 28. Referring to the decision in Associated Cement Co. Ltd. v Keshwan and [1998 (10 SCC 6871]. this Court held: "It has further been held that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, along can continue to represent the company till the end of the proceedings. It has been held that there may be occasions when different persons can represent the company. It has been held that it is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the court. Thus, even presuming that initialing there was no authority, still the company can, at any stage, rectify that defect. At a subsequent stage the company can send a person who is competent to represent the company. The complaints could thus not have been quashed on this ground. 10. This Court has always recognized that the Power of Attorney Holder can initiate criminal proceedings on behalf of his Principal. In Ram Chander Prasad Sharma V. State of Bihar and Anr. [AIR 1967 SC 349], the prosecution was commenced in regard to tampering of electric meter seals, with a charge-sheet submitted by the police after investigation on a first information report by one Bhattacharya. Mains Superintendent of Patna Electric Supple Co. (PES Co. for short). An objection was raised by the accused that the prosecution was incompetent to do so. The said objection was based on section 50 of the Indian Electricity Act, 1910, which provides that no prosecution shall be instituted against any person for any offence against that Act or any rule, license or order thereunder, except at the instance of the Government or an Electric Inspector, or of a person aggrieved by the same. This Court held: - "The P.E.S. Co., however, is a body corporate and must act only though its directors or officer. Here we have the evidence of Ramaswami to the effect that he held a general power of attorney from the P.E.S. Co., and that he was specifically empowered thereunder to act on behalf of P.E.S. Co., in all legal proceedings. The evidence shows that it was at his instance that Bhattacharya launched that first information report said, therefore, it would follow that the law was set in motion by the "persona aggrieved". The evidence shows that it was at his instance that Bhattacharya launched that first information report said, therefore, it would follow that the law was set in motion by the "persona aggrieved". The objection based on Section 50 must, therefore, be held to be untenable." 11. The assumption of the High Court that where the payee is a proprietary concern, the complaint can be signed only by the proprietor of the proprietary concern and not by; a Power of Attorney holder of the proprietor, is not sound. It is not in dispute that in this case a power of attorney has been granted by Atmakumari Shankara Rao, as proprietor of M/s Shankar Finance & Investments in favour of Thamada Satyanarayana and the same was produced along with the complaint. The description of the complainant is as under: "M/s Shankar Finance and Investments, (a proprietary concern of Sri Atmakumari Sankara RAo s/o Late Shri A.B.Rama Murthy, Hindu, aged about 65 years), having its office office at Flat No.3B, Third Floor, Maharaja Towers, Vishakhapatnam-3 represented by its Power of Attorney Holder Sri Thamada Satyanaryana, s/o Late Adinarayana, Hindu, aged 50 years, Service, residing at MIG-B-230, Sagarnagar, VUDA Layout, Vishakhapatnam-43." The said description is proper and, therefore, the complaint has been duly filed by the payee. 12. The High Court has referred to the fact that the sworn statement before the learned Magistrate was of the Attorney holder of the payee and not by the payee in person. According to the tenor of the order of the High Court, this was also irregular. But we find nothing irregular in such a procedure. It is now well settled that the object of section 200 of the Code in providing for examination of the complainant and his witnesses by the court is to satisfy itself about the existence of a prima facie case against the person accused of the offence and to ensure that such person is not harassed by false and vexatious complaints by issue of process; (See Nirmaljit Singh Hoon v. State of West Bengal. 1973 (3) SCC 753). Where the proprietor of the proprietary concern has personal knowledge of the transaction and the proprietor has signed the complaint, he has to be examined under section 200 of the Code. A power of Attorney holder of the complaint was does not have personal knowledge, cannot be examined. 1973 (3) SCC 753). Where the proprietor of the proprietary concern has personal knowledge of the transaction and the proprietor has signed the complaint, he has to be examined under section 200 of the Code. A power of Attorney holder of the complaint was does not have personal knowledge, cannot be examined. But where he Attorney holder of the complainant is in charge of the business of the payee-complainant and the Attorney holder alone is personally aware of the transactions and the complaint is signed by the Attorney holder on behalf of the payee- complainant. We may, in this connection, refer to the decision of this Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. [2005 (2) SCC 217] where the scope of an of the principal in a civil suit governed by Code of Civil Procedure was examined. This Court observed: "Order 3, Rules 1 and 2, CPC empower the holder of Power of Attorney to "act" on behalf of the principal. In our view the work "acts" employed in Order 3, Rules 1 and 2, CPC confines only to in respect of "acts" done by the power-of-attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some "acts" in pursuance of Power of Attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined. (Emphasis supplied) The Principal underlying the said observations will apply to cases under section 138 of the Act. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined. (Emphasis supplied) The Principal underlying the said observations will apply to cases under section 138 of the Act. In regard to business transactions of companies, partnerships or proprietary concerns, may a time the authorized agent or Attorney holder may be the only person having personal knowledge of the particular transaction; and if the authorized agent or Attorney holder has signed the complaint, it will be absurd to say that he should not be examined under section 200 of the Code, and only the Secretary of the Company or the partner of the firm or the proprietor of a concern, who did not have personal knowledge of the transaction, should be examined. Of course, where the cheque is drawn in the name of the proprietor of a proprietary concern. But an employee of such concern (who is not an Attorney holder) has knowledge of the transaction, the payee as complainant and the employee who has knowledge of the transaction, may both have to be examined. Be that as it may. In this case we find no infirmity." 29. In view of the above discussions these petitions are held to be meritless and accordingly dismissed. The record be send back to trial court forthwith.