Section 138 of NI Act: Whether S.P.A can prosecute
the complaint?
The Courts of Magistrates are often beset with the
objection as regards the maintainability of complaint instituted by a Power of
Attorney authorized by the payee or by Authorised Representative of company.
The validity of appointment of such Special Power of Attorney (SPA) or
Authorised Person of a company, as the case may be are raised in pre-trial and
post trial stage and considerable time is consumed to sort out the issues. More
often, it is also found that the objections are aimed at delaying the
proceedings. The Supreme Court has
periodically passed judgments in this regard so as to avoid any controversy.
Most recently, the Supreme Court has again dealt with the issue in a matter
captioned as M/s TRL Krosaki
Refractories Ltd. Versus M/s SMS Asia Private Limited & Anr (Arising
out of SLP (Crl.) No.3113 of 2018) reported as 1 2022 LiveLaw (SC) 196, to set
at rest the issues arising in the above context.
When a company is the payee of the cheque and based
on dishonor of the cheques, when a complaint is lodged filed under Section 138
of Negotiable Instruments Act (In short “NI Act”), the complainant shall be represented
by an employee who is authorized, the company, being a juristic entity, could
only be represented by a natural person. The sworn statement to the effect that
the complainant (Company) is represented by an authorized person who has
knowledge about the transaction is deemed sufficient for summoning the accused,
if other ingredients of section 138 of NI Act are satisfied. If any serious
dispute with regard to the authority crops up, the same are to be dealt with in
trial.
HOW TO SHOW AUTHORITY IN
COMPLAINT?
The hon’ble
Supreme Court in a matter reported as A.C.
Narayanan vs. State of Maharashtra & Anr. (2014) 11 SCC 790 has held
that "specific assertion as to the knowledge of the power of attorney
holder" about the transaction should be "said explicitly". It is
further held that there is no requirement of any specific format about it or no
manner of doing it is prescribed. All that is necessary is to demonstrate
before the concerned Magistrate that the complaint filed is in the name of the
"payee" and further, if the person who is prosecuting the complaint
is different from the payee, the authorization is provided and it should
further be stated that the contents of the complaint are within his knowledge. Therefore,
there is no straightjacket formula
about it and can only be gathered from the circumstance and the manner in which
it has been averred and conveyed, based on the facts of each case. The
complaint may be drafted in a different ways and may vary from case to case
basis and the same shall remain contingent on the level of the skills of the
person drafting the same which by itself, cannot defeat a substantive right.
However, what is to be gathered conclusively is the fact that the contents as
available in the pleading that conveys the meaning to the effect that the
person who has filed the complaint, is duly authorized and have knowledge of
the transaction. There may be a situation, where the authorized person may also
be, in addition, the witness to the transaction or in agreement and supporting
documents on the record may by themselves demonstrate that and in such a
circumstances, knowledge is inbuilt and therefore, the requirement of Section
142 of the NI Act shall stand satisfied.
The provisions of section 142 of NI Act are
reproduced as under for ready reference:
“142. Cognizance of offences.—[(1)]
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) xxxxxxxxxx (c)
xxxxxxxxxx”
CAN
A COMPLAINT BE QUASHED ON ALLEGED LACK OF AUTHORITY
The Supreme Court has held that a
petition seeking quashing of complaint u/s 482 of Cr.P.C before high courts on
the premise of lack of authorization in the initial stage of complaint should
not be entertained as any serious dispute could only be dealt with in trial.
In M/s TRL Krosaki Refractories Ltd (Supra), the hon’ble Supreme Court
while setting aside the order passed by the high court whereby the high court
had quashed summoning on the accused, had clearly held that the cognizance was prima facie right, if necessary
averments about knowledge of transaction and authority finds mention in
complaint u/s 138 NI Act. The said issue could not have been entertained in a
petition u/s 482 of Cr.P.C. The Magistrate
is required to be prima facie satisfied,
while taking cognizance on the complaint, that there is sufficient material for
issuance of summons.
In the M/s TRL Krosaki Refractories Ltd (Supra) the hon’ble Supreme Court
has held that a perusal of the complaint
would disclose that the complainant named therein through its General
Manager (Accounting). The cheques i.e the subject matter of the said complaint
under Section 138 of NI Act would disclose that the “payee” named in the said
cheques is M/s. TRL Krosaki Refractories Limited. If that be the position, the
requirement as contemplated under Section 142 (1) (a) of NI Act that the
complaint ought to be in writing and that it should be filed by the payee or
the holder in due course, stands satisfied.
When, the complainant/payee is a
company, an authorized employee can represent the company. Such averment and
prima facie material is sufficient for the learned Magistrate to take
cognizance and issue process. If at all, there is any serious dispute with
regard to the person prosecuting the complaint not being authorized or if it is
to be demonstrated that the person who filed the complaint has no knowledge of
the transaction and, as such that person could not have instituted and
prosecuted the complaint, it would be open for the accused to dispute the
position and establish the same during the course of the trial. As noted in Samrat
Shipping Co. Pvt. Ltd. Vs. Dolly George (2002) 9 SCC 455,, dismissal of
a complaint at the threshold by the Magistrate on the question of
authorisation, would not be justified. Similarly, in such circumstances
entertaining a petition under Section 482 to quash the order taking cognizance
by the Magistrate would be unjustified when the issue of proper authorisation
and knowledge can only be an issue for trial.
AUTHORITY
OF POWER OF ATTORNEY: Judicial prism
In A.C. Narayanan (supra) it
is noticed that Supreme Court, while considering the scope of Section 142
(1)(a) of N.I. Act had referred to earlier decisions in M/s. M.M.T.C. Ltd. vs. Medchi Chemicals and Pharma (P} Ltd., (2002)
1 SCC 234, Vishwa Mitter vs. O.P. Poddar,
(1983) 4 SCC 701 wherein it was held 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 was further held in Vishwa
Mitter (supra) that if any special statute prescribes offences and
makes any special provision for taking cognizance of such offences under the
statute, then the complaint requesting the Magistrate to take cognizance of the
offence must satisfy the eligibility criterion prescribed by such statute. It
was thus held that the only eligibility criteria prescribed by Section 142 of
NI Act is that the complainant must be by the payee or the holder in due
course. However, in a subsequent decision in Janaki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. & Ors.
(2005) 2 SCC 217, while considering the right of a power of attorney holder
to act on behalf of the principal in a civil proceeding, the provision contained
in Order III Rule 1 and 2 of CPC was kept in view and it was held that if the
power of attorney holder has rendered some acts in pursuance of the 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 is entitled to be cross examined. As the aforesaid two decisions
which were rendered by the Two Member Benches were assumed to be in conflict
with each other by another Division Bench and therefore it desired
clarification.
In that view, the matter the
Three Judge Bench in A.C. Narayanan (supra) has held then that the said two
judgments of the Supreme Court are not in conflict with each other and has
considered the scope and requirement of Section 142 (1)(a) of NI Act and
formulated the questions for consideration as contained in para 21 of the
judgment which read as hereunder:
“21. In
terms of the reference order, the following questions have to be decided by
this Bench:
21.1.
Whether a power of attorney holder can sign and file a complaint petition on
behalf of the complainant? /Whether the eligibility criteria prescribed by
Section 142(a) of the NI Act would stand satisfied if the complaint petition
itself is filed in the name of the payee or the holder in due course of the
cheque?
21.2.
Whether a power of attorney holder can be verified on oath under Section 200 of
the Code?
21.3.
Whether specific averments as to the knowledge of the power of attorney holder
in the impugned transaction must be explicitly asserted in the complaint?
21.4.
If the power of attorney holder fails to assert explicitly his knowledge in the
complaint then can the power of attorney holder verify the complaint on oath on
such presumption of knowledge?
21.5.
Whether the proceedings contemplated under Section 200 of the Code can be
dispensed with in the light of Section 145 of the NI Act which was introduced
by an amendment in the year 2002?”
The consideration made in paras
29 to 30 would be relevant to be noted, which read as hereunder:
“29.
From a conjoint reading of Sections 138, 142 and 145 of the NI Act as well as
Section 200 of the Code, it is clear that it is open to the Magistrate to issue
process on the basis of the contents of the complaint, documents in support
thereof and the affidavit submitted by the complainant in support of the
complaint. Once the complainant files an affidavit in support of the complaint
before issuance of the process under Section 200 of the Code, it is thereafter
open to the Magistrate, if he thinks fit, to call upon the complainant to
remain present and to examine him as to the facts contained in the affidavit
submitted by the complainant in support of his complaint. However, it is a
matter of discretion and the Magistrate is not bound to call upon the
complainant to remain present before the court and to examine him upon oath for
taking decision whether or not to issue process on the complaint under Section
138 of the NI Act. For the purpose of issuing process under Section 200 of the
Code, it is open to the Magistrate to rely upon the verification in the form of
affidavit filed by the complainant in support of the complaint under Section
138 of the NI Act. It is only if and where the Magistrate, after considering
the complaint under Section 138 of the NI Act, documents produced in support
thereof and the verification in the form of affidavit of the complainant, is of
the view that examination of the complainant or his witness(s) is required, the Magistrate may call upon the
complainant to remain present before the court and examine the complainant
and/or his witness upon oath for taking a decision whether or not to issue
process on the complaint under Section 138 of the NI Act. 30. In the light of
the discussion, we are of the view that the power-of-attorney holder may be
allowed to file, appear and depose for the purpose of issue of process for the
offence punishable under Section 138 of the NI Act. An exception to the above
is when the power-of-attorney holder of the complainant does not have a
personal knowledge about the transactions then he cannot be examined. However,
where the attorney holder of the complainant is in charge of the business of
the complainant payee and the attorney holder alone is personally aware of the
transactions, there is no reason why the attorney holder cannot depose as a
witness. Nevertheless, an explicit assertion as to the knowledge of the
power-of-attorney holder about the transaction in question must be specified in
the complaint. On this count, the fourth question becomes infructuous.”
The answer to the question raised
for consideration is contained in para 33 which read as hereunder:
33.
While holding that there is no serious conflict between the decisions in
M.M.T.C. and Vashdeo Bhojwani, we clarify the position and answer the questions
in the following manner:
33.1.
Filing of complaint petition under Section 138 of the NI Act through power of
attorney is perfectly legal and competent.
33.2.
The power of attorney holder can depose and verify on oath before the court in
order to prove the contents of the complaint. However, the power of attorney
holder must have witnessed the transaction as an agent of the payee/holder in
due course or possess due knowledge regarding the said transactions.
33.3.
It is required by the complainant to make specific assertion as to the
knowledge of the power of attorney holder in the said transaction explicitly in
the complaint and the power of attorney holder who has no knowledge regarding
the transactions cannot be examined as a witness in the case.
33.4.
In the light of Section 145 of the NI Act, it is open to the Magistrate to rely
upon the verification in the form of affidavit filed by the complainant in
support of the complaint under Section 138 of the NI Act and the Magistrate is
neither mandatorily obliged to call upon the complainant to remain present
before the Court, nor to examine the complainant of his witness upon oath for
taking the decision whether or not to issue process on the complaint under
Section 138 of the NI Act. 33.5. The functions under the general power of
attorney cannot be delegated to another person without specific clause
permitting the same in the power of attorney. Nevertheless, the general power
of attorney itself can be cancelled and be given to another person.”
A
cumulative perusal of the facts of the instant case would indicate that the
requirement as indicated in A.C. Narayanan, (supra) are in fact
satisfied in M/s TRL Krosaki Refractories Ltd (Supra). Firstly, as noted above,
the complaint was filed in the name of the company i.e., “the payee”, through
General Manager (Accounting). The authorisation by the Managing Director in his
favour discloses that Managing Director
of the appellant company had authorised the General Manager (Accounting) to
institute criminal proceedings, including proceedings under the provisions of
the NI Act and civil proceedings on behalf of the company against M/s. SMS Asia
Private Limited (respondent), to represent the company and take all necessary
actions in the matter in learned SDJM’s Court. The specimen signature of AR was
also attested by the Managing Director. The Managing Director apart from
himself being the key managerial personnel of the appellant company, has also
been delegated the power by the Board of Directors through the document.
Through the said document the Managing Director has been delegated, in general,
all powers necessary for the management and operation of the company and it has
been specified among others, to exercise the power relating to important issues
affecting the company’s land and property. Through the said document, the
Managing Director is also empowered to delegate where necessary and to the
extent required, any of the powers delegated to him, to his subordinate
officers. The above noted documents would disclose that the complaint under
Section 138 NI Act was filed on behalf of the “payee” company with due
authorisation.
A meaningful reading of the complaint
shall be of significance and what can be treated as an explicit averment,
cannot be put in a straitjacket but
will have to be gathered from the circumstance and the manner in which it has
been averred and conveyed, based on the facts of each case. The manner in which
a complaint is drafted may vary from case to case and would also depend on the
skills of the person drafting the same which by itself, cannot defeat a
substantive right. However, what is necessary to be taken note of is as to
whether the contents as available in the pleading would convey the meaning to
the effect that the person who has filed the complaint, is stated to be
authorized and claims to have knowledge of the same. In addition, the
supporting documents which were available on the record by themselves
demonstrate the fact that an authorized person, being a witness to the
transaction and having knowledge of the case had instituted the complaint on
behalf of the “payee” company and therefore, the requirement of Section 142 of
N.I. Act was satisfied.
In Vinita S. Rao vs. Essen Corporate
Services (P) Ltd. (2015) 1 SCC 527, it is held that a pleading of such
a nature to indicate the power to prosecute the complaint and knowledge of the
transaction as sufficient to maintain the complaint.
The Supreme Court had clarified that
it is to be kept in perspective that though the case in A.C. Narayanan (supra)
the facts involved therein were in the background of the complainant being an
individual and the complaint filed was based on the power of attorney issued by
the “payee” who was also an individual. In such an event, the manner in which
the power was being exercised was to be explicitly stated so as to establish
the right of the person prosecuting the complaint, to represent the payee i.e.,
the complainant. The position that would emerge when the complainant is a
company or a corporate entity will have to be viewed from a different
standpoint. In this regard in Samrat Shipping Co. Pvt. Ltd.(supra), while
disapproving the manner in which cognizance was refused to be taken and the complaint
had been dismissed by the learned Magistrate at the threshold, the Supreme Court
has held as hereunder:
“
Having heard both sides we find it difficult to support the orders challenged
before us. A company can file a complaint only through human agency. The person
who presented the complaint on behalf of the Company claimed that he is the
authorized representative of the company. Prima facie, the trial court should
have accepted it at the time when a complaint was presented. If it is a matter
of evidence when the accused disputed the authority of the said individual to
present the complaint, opportunity should have been given to the complainant to
prove the same, but that opportunity need be given only when the trial
commences. The dismissal of the complaint at the threshold on the premise that
the individual has not produced certified copy of the resolution appears to be
too hasty an action. We, therefore, set aside the impugned orders and direct
the trial court to proceed with the trial and dispose of it in accordance with
law. Parties are directed to appear before the trial court on 31.1.2000.”
Further, in National Small Industries Corporation Ltd. Vs. State (NCT of Delhi)
and Ors. (2009) 1 SCC 407, the Supreme Court has exhaustively considered the
validity of a complaint under Section 138 of N.I. Act and the satisfaction of
the requirement under Section 142 thereof. In the said context this Court has
held as hereunder:
“
The term “complainant” is not defined under the Code. Section 142 of the NI Act
requires a complaint under Section 138 of that Act to be made by the payee (or
by the holder in due course). It is thus evident that in a complaint relating
to dishonour of a cheque (which has not been endorsed by the payee in favour of
anyone), it is the payee alone who can be the complainant. The NI Act only
provides that dishonour of a cheque would be an offence and the manner of
taking cognizance of offences punishable under Section 138 of that Act.
However, the procedure relating to initiation of proceedings, trial and
disposal of such complaints, is governed by the Code. Section 200 of the Code
requires that the Magistrate, on taking cognizance of an offence on complaint,
shall examine upon oath the complainant and the witnesses present and the
substance of such examination shall be reduced to writing and shall be signed
by the complainant and the witnesses. The requirement of Section 142 of the NI
Act that the payee should be the complainant, is met if the complaint is in the
name of the payee. If the payee is a company, necessarily the complaint should
be filed in the name of the company, if a company is the complainant. A company
can be represented by an employee or even by a nonemployee authorized and
empowered to represent the company either by a resolution or by a power of
attorney”.
While passing a combined
judgment in the cases A.C. Narayanan v. State of
Maharashtra & Anr. (Criminal Appeal No. 73 of 2007) and Shri.
G. Kamlakar v. M/S Surana Securities Ltd. & Anr. (Criminal
Appeal No. 1437 of 2013), the Supreme Court held that Power of Attorney can
file a complaint under Section 138 of Negotiable Instruments Act, 1881 provided
that he must specifically plead and support the complaint by relevant
documents. If the Power of Attorney does not know about the transactions of the
company then he/she cannot be examined.
SECTION 142 NI Act and Section 200 Cr.P.C: DIAGNOSTIC
FEATURES
Thus in every complaint, where
the complainant is an incorporeal body, there is a complainant – de jure, and a complainant de facto. Clause (a) of the proviso to
Section 200 provides that where the complainant is a public servant, it will
not be necessary to examine the complainant and his witnesses. Where the
complainant is an incorporeal body represented by one of its employees, the
employee who is a public servant is the de facto complainant and in signing and
presenting the complaint, he acts in the discharge of his official duties.
Therefore, it follows that in such cases, the exemption under clause (a) of the
first proviso to Section 200 of the Code will be available.
Resultantly, when in a complaint
in regard to dishonour of a cheque issued in favor of a company or corporation,
for the purpose of Section 142 of the NI Act, the company will be the
complainant, and for purposes of Section 200 of the Code, its employee who
represents the company or corporation, will be the de facto complainant. In
such a complaint, the de jure
complainant, namely, the company or corporation will remain the same but the de
facto complainant (employee) representing such de jure complainant can change,
from time to time. If the de facto complainant is a public servant, the benefit
of exemption under clause (a) of the proviso to Section 200 of the Code will be
available, even though the complaint is made in the name of a company or
corporation.” (emphasis supplied)
In that view, the position that
would emerge is that when a company is the payee of the cheque based on which a
complaint is filed under Section 138 of N.I. Act, the complainant necessarily
should be the Company which would be represented by an employee who is
authorized. Prima facie, in such a situation the indication in the complaint
and the sworn statement (either orally or by affidavit) to the effect that the
complainant (Company) is represented by an authorized person who has knowledge,
would be sufficient. The employment of the terms “specific assertion as to the
knowledge of the power of attorney holder” and such assertion about knowledge
should be “said explicitly” as stated in A.C. Narayanan (supra) cannot be
understood to mean that the assertion should be in any particular manner, much
less only in the manner understood by the accused in the case. All that is
necessary is to demonstrate before the learned Magistrate that the complaint
filed is in the name of the “payee” and if the person who is prosecuting the
complaint is different from the payee, the authorisation thereof and that the
contents of the complaint are within his knowledge.
REMARK
Thus, what is borne out from
above is the fact that the Special Power of Attorney (SPA), if duly authorized
by the payee can prosecute the complaint on behalf of the complainant, so long
as, the said SPA shall have personal knowledge about the transaction and the
said averments are there in complaint or affidavit and the document with regard
to the authority is placed on record. The Magistrates shall thus be within its
authority to take cognizance of the complaint. Similarly, authorization, either
through resolution passed by Board of Directors’ of complainant company, or
through GPA coupled with personal knowledge and averments to that effect in the
complaint shall be enough. Even a non- employee of the complainant company
could be authorized, if the said person has personal knowledge to that effect
and necessary averment is there in the complaint or in affidavit filed before
the ld Magistrate u/s 138 of NI Act. It is also clearly settled that any
serious dispute with regard to the authority to the AR or SPA shall be the
subject matter of trial and invocation of section 482 of Cr.P.C by a party for
seeking quashing on that premise is clearly deprecated by hon’ble Supreme Court
and in the dicta as referred to above, it is clearly held that the quashing of
summoning order cannot be permitted in the above backdrop. Still further, as
held in in A.C Narayanan (Supra) there is no impediment in authorising someone
as SPA in individual complaint, if the stipulations as narrated above i.e
personal knowledge about the transaction and averments to that effect finds
mention in the complaint.
Anil
K Khaware
Founder
& Senior Associate
Societylawandjustice.com
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