Smt Mahadevamma vs M/S Il Proprietors Pvt Ltd
2022 Latest Caselaw 2127 Kant

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF FEBRUARY, 2022

                       BEFORE:

           THE HON'BLE MR. JUSTICE P.N.DESAI

   CRIMINAL REVISION PETITION No. 836 OF 2019

BETWEEN:

SMT. MAHADEVAMMA,
W/O. M. L. SHANKAR,
AGED ABOUT 57 YEARS,
R/AT NO.45/46, 4TH MAIN,
ASTALAKSHMI LAYOUT,
J P NAGAR,
BENGALURU-560 078.                      .. PETITIONER

(BY SRI. D.P. PRASANNA, ADV.)
AND:

M/S. iL PROPRIETORS PVT LTD.,
OFFICE AT NO.732
4TH FLOOR, 15TH CROSS,
J. P NAGAR 6TH PHASE,
BENGALURU-560 078.                     ...RESPONDENT

(BY SRI. KUMARA K.G , ADV.)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE
PETITIONER PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE PASSED BY THE LXV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY IN CRL.A.NO.696/2016, DATED 15.03.2019, AND
JUDGMENT IN C.C.NO.4149/2015, DATED 11.05.2016 ON
THE FILE OF THE XLII A.C.M.M., AT BENGALURU CITY AND
ACQUIT THE PETITIONER FOR THE CHARGES UNDER
SECTION 138 OF N.I ACT.

     THIS CRIMINAL REVISION PETITION IS COMING ON
FOR ADMISSION, THIS DAY, THE COURT MADE THE
FOLLOWING:-
                              -2-


                         ORDER

This revision petition is filed by the petitioner

under section 397 and 401 of The Code of Criminal

Procedure, 1973(for short hereinafter referred to as

Cr.P.C.) with a prayer to set-aside the judgment of

conviction and order of sentence dated 15.03.2019

passed by learned LXV Additional City Civil and Sessions

Judge, Bangalore in Crl.A.No.969/2016, wherein the

learned sessions judge confirmed the judgment of

conviction dated 11.05.2016 passed by learned XLII

Additional Chief Metropolitan Magistrate, Bengaluru in

C.C.No.4149/2015, wherein the accused is convicted for

the offence punishable under section 138 of the

Negotiable Instruments Act, 1881 (for short hereinafter

referred to as N.I.Act) and acquit the petitioner of the

said charge.

2. The Revision petitioner before this Court was

the accused before the trial court and the respondent

was the complainant. For the sake of convenience, the

parties will be referred as 'accused' and 'complainant' as

per their respective ranks before the trial court.

3. The brief case of the complaint before the trial

court is as under:-

That the complainant is a company incorporated

under the Companies Act, 1956. It is further case of the

complainant that in the second week of January 2014,

the accused approached the complainant alongwith her

husband and son stating that she is the absolute owner

of the property bearing Sy.No.45/46 measuring 50' x

70' in Sy.No.25 situated at J.P. Nagar, 6th Phase,

Bengaluru and they offered the complainant to purchase

or develop the said property by entering into a joint

development agreement. Believing the representation of

the accused, the complainant agreed for the same. In

this regard, on 21.02.2014, the accused requested the

complainant to pay a sum of Rs.5,00,000/- as advance

to clear some loans. The complainant paid a sum of

Rs.2,10,000/- by way of cash and Rs.2,90,000/- by way

of cheque bearing No.000160 dated 21.02.2014 drawn

on HDFC, Jayanagar, Bengaluru. At the time of

collecting money from the complainant, the accused

executed a joint development agreement in favour of

the complainant and if she fails to do so, the amount

will be repaid within 15 days. It is further contended

that the accused executed a Memorandum of

Undertaking in favour of the complainant after receiving

the amount and the husband and son of the accused

also signed as witnesses to the said MOU.

4. It is further contended that the complainant

thereafter got verified the property papers given by the

accused through an Advocate and came to know that

the said property was already mortgaged to certain

bank by availing the loan. In this regard, the

complainant enquired with the accused and the accused

admitted the same and stated that she would repay the

amount and requested not to take any legal action

against her. On several occasions, the complainant

requested the accused to repay the amount.

Subsequently, in the last week of September 2014, the

accused issued a post-dated cheque bearing No.008042

dated 06.10.2014 for Rs.5,00,000/- drawn on Bank of

Maharashtra, J.P. Nagar Branch, Bengaluru, in favour of

the complainant. The complainant presented the said

cheque to the bank for encashment on 06.10.2014

through its banker HDFC, but the said cheque was

returned with an endorsement 'Funds Insufficient'.

Thereafter, the complainant got issued a notice to the

accused on 08.11.2014 through RPAD. Though the said

notice was served on the accused on 12.11.2014, the

accused neither replied to the notice nor paid any

amount. Therefore, the complainant was constrained to

lodge a complaint against the accused under section

138 of N.I. Act.

5. Before the trial court, the accused appeared.

The complainant got examined himself as PW-1 and got

marked six documents as Ex P1 to P6. The statement of

the accused under section 313(1)(b) Cr.P.C. was

recorded. The accused denied evidence of complainant.

The accused has not chosen to adduce defence

evidence. After hearing both sides, learned magistrate

found the accused guilty of the offence punishable

under section 138 of N.I. Act and she was convicted and

sentenced to pay fine of Rs.5,000/- and in default to

undergo simple imprisonment for 30 days and under

section 357(3) Cr.P.C., the accused was directed to pay

Rs.5,60,000/- to the complainant as compensation, in

default, to undergo simple imprisonment for a period of

four months. The same was challenged by the accused

before the sessions court in Crl.A.No.696/2016. Learned

sessions judge by judgment and order dated

15.03.2019 dismissed the appeal and confirmed the

judgment of conviction and order of sentence which is

now assailed before this Court in this revision petition.

6. I have heard Sri. D.P. Prasanna, learned

counsel for the revision petitioner and Sri. Kumar K.G.

for the respondent through video conferencing.

7. I have perused the appeal memo, judgment of

the learned sessions judge, judgment of the trial court

and also the evidence on record.

8. Learned counsel Sri. D.P.Prasanna appearing

on behalf of the Revision petitioner argued mainly on

one point. Learned counsel argued that under section

142 of the N.I. Act, the trial court ought not to have

taken cognisance of the offence under section 138 of

N.I. Act, when the complaint in writing is not made by

the payee or by its authorised authority holder in due

course.

9. Learned counsel further argued that if the trial

court records are perused, when the complainant got

examined himself initially, he has produced only four

documents which are marked as Exs-P1 to P4, wherein

Ex-P1 is the cheque, Ex-P2 bank endorsement for

insufficient funds, Ex-P3 legal notice and Ex-P3(a) and

(b) postal acknowledgment and Ex-P4 complaint. So

learned counsel argued that the cognizance taken by

the trial court without there being proper authorisation

to the person who has filed the complaint is bad in law.

Learned counsel argued that the authorisation Ex-P5

and the agreement receiving advance amount for joint

agreement -Ex-P6 are produced subsequently by

recalling PW-1. Therefore, learned counsel argued that

the said cognizance taken by the trial court is bad in law

in view of section 142 of N.I. Act. In support of his

argument, learned counsel has relied on the decision of

M/s. SURINDERA STEEL ROLLING MILLS v. SH.

SANJIV KUMAR & ANR1, wherein, it is held-complaint

not filed by holder of cheque in due course and

complaint not been filed through a duly authorised

person, the cognizance thereof, could not be taken and

accused was entitled to acquittal. The learned counsel

submitted that in the present case also as no

authorisation was produced, the complaint filed by the

complainant without there being any authorisation is

bad in law and the cognizance taken by the learned

magistrate is illegal and hence the petitioner/accused is

entitled for acquittal. Learned counsel relied on another

decision of this court in GEORGE JOSEPH v. HMT

(INTERNATIONAL) LIMITED2.

10. Learned counsel argued that in view of the

principles stated in the above decision, the proceedings

are vitiated for want of authority to prosecute the

complaint on behalf of the company. He relied upon

another decision of coordinate Bench of this Court in the

case of CREF FINANCE LIMITED, KOLKATA v. SREE

2009 CRL.L.J. (NOC) 701 (P. & H.)

2015(1) AKR 822

SHANTHI HOMES PRIVATE LIMITED, BANGALORE

AND ANOTHER3

11. So learned counsel argued that in the

aforestated decision also, the person who has signed

the complaint has no authority in law to represent the

company as there is no resolution by the Company

authorizing the complainant to file the complaint.

Learned counsel prayed to dismiss the complaint and

acquit the revision petitioner/accused. Except this point,

no other point was urged by the learned counsel.

12. Against this, learned counsel for the

respondent/complainant Sri. Kumara K.G. appearing

through video conferencing argued that, this aspect is

considered by both trial court as well as first appellate

court. Both the courts have concurrently held that the

complaint is filed by the authorised person. Hence the

said contention urged by learned counsel for the

petitioner is not tenable. Learned counsel further argued

that if the original records of the trial court are perused,

the complainant infact at the time of filing the complaint

ILR 2014 KAR 2168

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itself has produced the said authorisation letter which is

available on record at page 7 of the complaint and same

is evident from the list of documents produced by the

complainant which is available at ink page 97 of the file.

Totally five documents were produced alongwith

complaint, out of which 5th document is shown in the

list of documents as Authorization letter/company

incorporation letter. Learned counsel submitted that

though the said authorisation letter was produced

earlier, due to oversight, it was not marked when the

complainant led his evidence at the initial stage.

Subsequently, an application was filed by the

complainant under section 311 Cr.P.C. to recall the

complainant/PW-1 and the said authorisation letter

which was already produced alongwith the complaint

was marked as Ex-P5 alongwith other papers.

Therefore, learned counsel argued that the complaint

was filed by one Sri. Appanna V.T, who is Director of

M/s. il Properties Private Ltd., as competent person. In

this regard, he has argued that the same was also

mentioned in the legal notice issued to the

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respondent/accused, and subsequently a complaint was

filed. Therefore, learned counsel contended that there is

prior authorisation before issuance of legal notice and

filing of the complaint in favor of PW1. Learned counsel

brought to the notice of the Court the discussion of the

trial court and also the first appellate courts made at

paras 19 of the judgments. The learned counsel argued

that the said authorisation was not questioned by the

petitioner/accused and she has not replied to the legal

notice, therefore, such contention of the revision

petitioner at this stage is not at all tenable.

13. I have perused the judgment of both trial

court and appellate court and records of the case.

14. From the above materials, the point that arise

for consideration of this Court is:-

"Whether the judgment passed by the

LXV Addl. City Civil and Sessions Judge,

Bengaluru in Crl.A.No.696/2016 confirming

the judgment of conviction and sentence by

learned XVI Addl. Chief Metropolitan

Magistrate, Bangalore City in

- 12 -

C.C.No.4149/2015 is legal, correct or call

interference by this Court?"

15. I have perused the evidence meticulously. On

perusing the complaint which is marked as Ex-P4, it is

evident that the written complaint was filed by M/s. il

Proprieties Private Ltd., represented by its Director

Sri. Appanna V.T. and complaint is also signed by him

for M/s. il Properties Private Ltd., as authorised

signatory and the seal and signature of the said person

is appearing in all the pages. He has verified the same.

In para 2 of the complaint, it is stated that the said

complainant is a company incorporated under the

provisions of the Companies Act, 1956 and the

complainant company is represented by its Director,

who is incharge and responsible for the day-to-day

administration and affairs and functioning of the

complainant company. Complainant has also stated

about issuance of legal notice which was served on the

accused. He has stated that said notice was not replied

inspite of service. Hence, he has filed the complaint and

he has also filed his sworn statement by way of

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affidavit, wherein he has also stated on oath that he

know the facts of the case and he is the Director and

representative of the above said company and is

incharge and responsible for the day-to-day affairs and

functioning of the company. Complainant has reiterated

the complaint averments in his sworn statement. It is

also evident from the order sheet maintained by the

trial court that when the complaint was filed, learned

magistrate in his order of taking cognizance has

mentioned that the complainant has filed his affidavit by

way of sworn statement and also list of documents.

After verification of the same and after perusing the

complaint, documents and sworn statement, learned

magistrate was of the opinion that there is prima-facie

case made out by the complainant and took cognizance.

The complaint containing list of documents as referred

above shows that authorisation letter was also produced

alongwith the complaint itself. Therefore, at this stage,

the contention of Revision Petitioner that cognizance

taken by the learned magistrate is illegal or wrong

cannot be accepted.

- 14 -

16. In the examination-in-chief, the complainant

PW1 has deposed that he had produced only four

documents and in the cross examination, it is suggested

that they have obtained blank cheque and signature of

the accused, her husband and son on a stamp paper

and blank paper, PW1 has denied it. It is further

suggested that in the month of August 2014, accused

has returned money and asked for return of the cheque,

it was not returned, he has denied it. It is suggested

that PW1 is not authorised to lodge the complaint, he

has denied it. The oral evidence of PW1 corroborates

his documentary evidence. Ex-P1 complaint. Ex-P2 bank

endorsement, Ex-P3 copy of legal notice. Ex-P3(a) and

(b) are the postal acknowledgments and Ex-P4 is the

complaint.

17. It is pertinent to note that Ex-P3 legal notice

was issued on 8th November 2014, wherein said

counsel has clearly mentioned that as per the

instructions of M/s.i1 Properties Private Limited,

represented by its Director Appanna V.T., legal notice is

given to the accused. Ex-P5 is the copy of the resolution

- 15 -

wherein the Directors of M/s. i1 Properties Pvt. Ltd., in

the meeting held on 15th October 2014, resolved to

take legal action against accused Smt. Mahadevamma

for return of the cheque by the bank and authorising

Sri. Appanna V.T., Director to take action in the matter.

Said resolution is not challenged by the accused nor any

reply notice was given by her. Ex-P3 is the legal notice.

It is evident that resolution was passed on 15th October

2014. Subsequently, notice was issued on 8th

November 2014. As per the authorisation issued by the

company authorising Sri. Appanna V.T, Director, a

complaint was filed wherein it is clearly averred in

complaint that he is in charge and responsible for the

day-to-day affairs administration of the company and he

is authorised to file the complaint and accordingly, he

has signed the complaint. Therefore, the contention of

the revision petitioner that the complaint is not filed by

authorised person of the company at this stage is not

tenable.

18. In the decision of GEORGE JOSEPH referred

supra, it is observed at para 6 as under:-

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6. "In answer to the first point raised, it may be said following the view expressed in MMTC Ltd . v. Medchl Chemicals and Pharma Limited, (2002) 1 SCC 234, (relying on Vishwa Mitter v. OP Poddar, (1983) 4 SCC 701), anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. No court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. However, 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. The only eligibility criteria prescribed by Section 142 of the NI Act is that the complaint must be by the payee or the holder in due course. That criteria is satisfied in the present case on hand, as the complaint is in the name and on behalf of the respondent company.

It is further opined (following Associated Cement Company Limited v. Keshvanand, (1998) 1 SCC 687) that a complainant must be a corporeal person who is capable of making a physical appearance in the court. If a complaint is made in the name of an incorporeal person (like a company or a corporation) it is necessary that a natural person represent such a juristic person in court. The court looks upon the natural person to be the complainant for all practical purposes. No magistrate shall insist that the particular person whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. There may be occasions when different persons can represent the

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company. It would be open for the de jure complainant company to seek permission of the court for sending any other person to represent the company in court. Thus even presuming that initially there was no authority, still the company can at any stage, rectify that defect .

Therefore, the question whether a person is competent and authorised to represent an incorporeal body such as a company or a corporation, in filing or presenting the complaint, would not normally be gone into in the court taking cognizance of a complaint, if the complaint is on behalf of the payee or the holder in due course of the cheque in question.

However, should the question be raised by the court in the course of the proceedings or is an objection raised by the accused, the complainant is bound to satisfy the court that the person prosecuting the complaint is competent and duly authorized by the incorporeal complainant to represent it. The contention that the question would be material only if there is a plea raised by the accused to that effect, is apparently taken drawing inspiration from the observation made by this court in the case of Sarathi Leasing Finance v. B.Narayana Shetty, 2006 (3) Kar.L.J 397. In that case, it was found as a fact that the complaint had been filed by the Managing Director of the complainant company, and that he was duly authorized under the Articles of Association to do so. Hence, the question whether the accused had raised a 'plea' in that regard did not arise at all and the observation was clearly obiter dicta, which is unwittingly and unnecessarily emphasized in the head note, to the report, by the concerned editor. Further, in the present case on hand, as can be

- 18 -

seen from the judgments of the trial court and the appellate court, the question has been raised by the accused and PW-1 has been cross-examined on this aspect.

However, the fact that the law requires a company or a corporate body to carry on its affairs in a particular manner and the question whether the proceedings have been instituted and is prosecuted in conformity with such requirements, is a question of law that should be satisfied as a matter of course and ought not to depend upon whether an objection has been raised or a 'plea' taken, if you will. The infirmity if noticed should be cured. It certainly cannot be ignored as being a mere technicality that would not vitiate the proceedings.

Section 291 of the Companies Act, 1956, did embody the principle that subject to the specific exceptions mentioned, the directors of the company, as its governing body, are entitled to exercise all the powers of the company. In the instant case on hand, it is noticed by the lower appellate court that the Articles of Association of the company, did confer the power on the Directors to sue or defend any proceedings on behalf of the company. A delegation of such power can only be by a resolution of the Board of Directors. Hence, a letter of authorization or a Power of Attorney executed by the Chairman or other officer of the company, without a delegation of the power to institute such proceedings having emanated from the Board of Directors, would invalidate any proceedings brought without the necessary authority. This lack of authority could have been supplied even before the appellate court when the issue arose for consideration, as has been observed by the Apex court in MMTC's case as well in the case of United Bank of India v. Naresh Kumar

- 19 -

(1996) 6 SCC 660. In other words even on a presumption, that in the face of a letter of authorization and a power of attorney having been executed, authorizing the concerned person to file and prosecute the complaint, that there was an implied authorization by the Board, it ought to have been formally ratified, when the same was questioned before the courts below.

This court has consistently held that for any person to represent and tender evidence in a court of law on behalf of a company, ought to be authorized under the Articles of Association of the company or by a separate resolution by the Board of Directors.

See : Menon Ventures, Bangalore v Birla 3M Limited, Bangalore, (2005 (5) Kar. L.J.448) ; Director, Maruti Feeds and Farms Private Limited, Dharwad v. Basanna Pattekar (2007 (5) Kar. L.J.310) and Om Shakthi Scheduled Castes and Scheduled Tribes and Minority Credit Co-operative Society Limited v M. Venkatesh (2008(2) Kar. L.J. 486; National Small Industries Corporation Limited v Harmeet Singh Paintal and another, (2010)3 SCC 330."

It is evident from the decision referred above, that

the coordinate Bench at para 6 has discussed various

decisions of this Court and also Apex Court as to who

can file the complaint and in the same decision itself,

relying on the decision of MMTC Ltd., v. Medchl

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Chemicals and Pharma Limited4, it is stated 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 is further

observed by coordinate Bench that under section 142 of

the NI Act, the complaint must be by the payee or the

holder in due course. That is the criteria to be satisfied

at the initial stage. The Coordinate Bench has further

observed that no magistrate shall insist that the

particular person whose statement on oath at the first

instance, alone can continue to represent the company

till the end of the proceedings, but there may be

occasions when different persons can represent the

company. Therefore, the question whether a person is

competent or authorised to represent an incorporeal

body such as a company or a corporation in filing or

presenting the complaint, would not normally be gone

into in the court taking cognizance of a complaint, if the

complaint is on behalf of the payee or the holder in due

course of the cheque in question.

2002 1 SCC 234

- 21 -

19. The next decision of M/s. SURINDERA

STEEL ROLLING MILLS, referred supra, the head note

cannot be disputed at all. In that case, the complaint

was filed by a person who is not duly authorised. So

cognizance taken is bad in law. That proposition has

nothing to do with the present case. Further, the

decision in CREF FINANCE LIMITED, KOLKATA

referred supra, it is held at para 7 and 16 as under:-

7. The Board of Directors of the Company collectively entitled to exercise the powers and to do the acts on behalf of the Company. Section 291 of the Companies Act confers the authority to the Board of Directors collectively. Therefore, if a complaint is to be filed, it is necessary for the Board of Directors to authorize any person to file a complaint or depose to the facts in a case and such an authority could be granted by the Board of Directors only under a resolution. The complainant has produced Ex.P1, which is a certified copy of the Resolution dated 27.06.2000, which authorizes one Sri. Ravi Puri and Sri. Pramod Kumar, to sign any document in connection with the legal proceedings pertaining to recovery of the amount due and dishonour of cheques and to do all acts and deeds necessary in this behalf. It is in pursuance of this Resolution-Ex.P1 that P.W.1-Pramod Kumar has deposed on behalf of the Company. This Resolution authorizes the aforesaid two persons to do all necessary acts in the legal proceedings.

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But, the perusal of the complaint reveals that it is signed by "Ravi Seth", who is said to be the authorized signatory and Vice- President of the Company. The name of Sri. Ravi Seth is not seen in the Resolution at Ex.P1. So also, the complainant has not produced any other Resolution or document conferring authority to Sri. Ravi Seth to file or sign a complaint on behalf of the Company. The appellant has not explained as to who authorized Sri. Ravi Seth to file or sign the complaint and no Resolution of the Board or any document has been produced in the evidence. Learned counsel for the appellant has not explained any authority having been granted to Sri. Ravi Seth to file a complaint on behalf of the Company. Therefore, the complaint of the appellant cannot be maintained in the absence of any authority to Sri. Ravi Seth to file the complaint on behalf of the Company. Mere fact that P.W.1-

Pramod Kumar was authorized on behalf of the Company either to file the complaint or depose to the facts, he having not signed the complaint, his authority in the absence of his signature on the complaint is of no help to the appellant. On this aspect of the matter, a reliance is placed on the decision of this Court DIRECTOR, MARUTI FEEDS AND FARMS PVT., LTD., vs. BASANNA PATTEKAR reported in ILR 2007 KAR. 3155, wherein it is held that the Company is a juristic person and any person on behalf of the Company has to be authorized by the Company under Articles of Association or by a separate resolution to depose on behalf of the Company. Therefore, this Court held that dismissal of the complaint is sound and proper. Though the decision refers to an authority to depose to the facts, the principle of law as such is applicable even to an authority to sign the complaint.

xxxxxxxxxxxxxxx

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16. Despite the findings, the accused are due for the sum mentioned in the cheques-Exs.P4 to 7 and that P.W.1-Sri. Pramod Kumar has the authority to depose before the Court in the present case, the complaint instituted by the appellant in the trial Court is not maintainable for the sole reason that Sri. Ravi Seth, who has signed the complaint has no authority in law to represent the Company as there is no resolution by the Company authorizing Sri. Ravi Seth to file the complaint. The Trial Court in addition to other grounds has dismissed the complaint of the appellant on this ground as well. In this appeal though the appellant is able to establish all other grounds, as the complaint itself is incompetent for the reasons aforesaid, the dismissal order passed by the Trial Court cannot be interfered with."

This judgment is also of no use to the revision

petitioner. In that case, the complaint was filed and

signed by a person who has no authority in law to

represent the company and there was no resolution of

company authorising him to file the complaint. That

proposition is well settled and reiterated by this Court

and also Hon'ble Supreme Court in number of cases

also. In that case, no proper authorisation was there to

file complaint and hence the trial court had dismissed

the complaint.

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20. Here in this case, learned trial judge has

discussed the said aspect at para 14 of the judgment

and observed that PW-1 being Director and authorised

person is competent to file the complaint. Learned

sessions judge in his judgment at para 19 has also in

detail discussed as to how this complainant who is

examined as PW-1 is competent to file a complaint and

depose in this regard.

21. As far as issuance of cheque and signature are

not disputed by the complainant. Apart from that, there

is presumption under section 139 of N.I. Act in respect

of issuance of cheque and unless the same is rebutted

by the accused either by cross-examination of PW-1 or

lead defence evidence to show by preponderance of

probability that presumption is not available and the

contents of the complaint are not probable.

22. In this regard, the petitioner/accused has not

let in any defence evidence to rebut such presumption

and the cross examination of PW-1 does not disclose

that the defence of the accused revision petitioner is

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tenable. On the other hand, on perusal of section

142(a) of N.I. Act and section 138 of N.I. Act, the

complainant has complied with the ingredients of said

sections and there is no merit in the arguments

advanced by learned counsel for the petitioner.

Therefore, the contention of the revision petitioner that

the complaint PW1 in this case lacks authorisation to file

a complaint and to depose evidence on behalf of

company has no basis. This revision petition is filed by

the petitioner only to avoid her liability some how and

there is no legal basis for the same. On the other hand,

what is required is the complainant must be payee or

holder in due course and if it is mandatory to satisfy

that the complaint is in the name and on behalf of the

company, then that satisfies the requirement of section

142 of N.I. Act. Here, it is the i1 Properties Private Ltd.,

which is payee or holder in due course which is not

disputed by the complainant It has authorised Sri.

Appanna V.T. to issue legal notice by engaging counsel

and lodge the complaint and authorisation is given by

passing a resolution in the Board of Directors which is

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evident from Ex-P5. Learned counsel for revision

petitioner argued that the said resolution does not bear

any date and the Director has not signed it.

23. In another decision, the Hon'ble Supreme

Court in the case of BHUPESH RATHOD v.

DAYASHANKAR PRASAD CHAURASIA AND

ANOTHER5, the same is dealt with, wherein it is held

that "while we turn to the authorisation, it was a copy

and, thus, does not have to be signed by the Board

Members, as that would form a part of the minutes of

the Board meeting and not a true copy of the

authorisation. We also feel that it has been wrongly

concluded that the Managing Director was not

authorised". Here in the present case on perusing Ex-

P5, the same discloses the date of resolution passed by

the Board of Directors authorising the present

complainant to lodge a complaint. Just because the

same does not bear the date when the authorisation is

issued does invalidate the resolution of the Board of

Directors authorising the complainant. On the other

AIR 2021 SC 5726

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hand, the Hon'ble Supreme Court in the case of

BHUPESH RATHOD referred supra, at paras 21, 23 and

24 considered the said aspect and it is stated at para 23

that it would be too technical a view to take to defeat

the complaint merely because the body of the complaint

does not elaborate upon the authorisation. The Court

referred to the authorisation which was a copy and it is

stated that it does not have to be signed by the Board

Members, as it would form a part of the minutes of the

Board meeting and not a true copy of the authorisation.

Therefore, the Hon'ble Supreme Court was of the

opinion that it has been wrongly concluded that the

Managing Director was not authorised.

24. Further, the Hon'ble Supreme Court while

considering sections 142 and 138 of N.I. Act in the case

of M/s. M.M.T.C. LTD & ANR., v. M/S. MEDCHL

CHEMICALS & PHARMA (P) LTD.,6 it has held that even

if the complaint is lodged by the Manager or who had

not been authorised by the Board of Directors to sign

and file the complaint on behalf of the company is not a

2002 CRL.L.J. 266

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ground to quash the complaint since said defect is

curable. Therefore, here in the case on hand, at the

time of filing of the complaint, the complainant has

produced the authorisation. Simply because it was not

marked due to oversight or some inadvertence, it is not

a ground for the revision petitioner to take such a

stand. The Hon'ble Supreme court in the case of M/s.

SHANKAR FINANCE & INVESTMENTS v. STATE OF

ANDHRA PRADESH AND OTHERS7 has elaborately

discussed as to how a complaint under section 138 of

N.I. Act is to be filed by a company and what are the

requirements of section 142(a) of taking cognizance of

the offence and who should represent the payee where

the payee is a company or sole proprietrix one and said

aspect was dealt at para 7 which reads as under:-

7. The payee of the cheque is M/s Shankar Finance & Investments. The complaint is filed by "M/s Shankar Finance & Investments, a proprietary concern of Sri Atmakuri Sankara Rao, represented by its power of Attorney Holder Sri Thamada Satyanarayana". It is therefore evident that

(2008) 8 SCC 536

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the complaint is in the name of and on behalf of the payee.

Section 142(a) of the Act requires that no Court shall take cognizance of any offence punishable under section 138 except upon a complaint made in writing by the payee. Thus the two requirements are that

(a) the complaint should be made in writing (in contradistinction from an oral complaint); and (b) the complainant should be the payee (or the holder in due course, where the payee has endorsed the cheque in favour of someone else). The payee, as noticed above, is M/s Shankar Finance & Investments. Once the complaint is in the name of the `payee' and is in writing, the requirements of section 142 are fulfilled. Who should represent the payee where the payee is a company, or how the payee should be represented where payee is a sole proprietary concern, is not a matter that is governed by section 142, but by the general law."

Therefore, in view of the principles stated in the

aforesaid decisions and the evidence on record and

records of the case, if the judgment of the trial court

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which is confirmed by the learned sessions Judge in

Crl.A.696/2016 is considered, then it is evident that

both the courts have rightly appreciated the evidence on

record as per the settled principles regarding

appreciation of evidence in the cases of dishonour of

cheques which is popularly called as 'Cheque bounce

cases'. Both the courts have rightly raised a

presumption arising in favour of the complainant and

have come to the conclusion that the revision petitioner

has failed to rebut said presumption. Regarding

cognizance and also requirements under sections 142

and 138 of N.I. Act, both courts rightly held that the

complaint filed by the respondent/complainant is legal

and proper. Therefore, in view of the reasons stated

above, this revision petition being devoid of merit is

liable to be dismissed.

Accordingly, I pass the following:

ORDER

1. The revision petition is dismissed.

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2. The judgment passed by the learned

Sessions Judge in Crl.A.No.696/2016 dated

15th March 2019 which has confirmed the

judgment of conviction and order of

sentence passed by learned XLII Addl. Chief

Metropolitan Magistrate, Bengaluru dated

11th May 2016 in C.C.No.4149/2015 is

hereby confirmed.

3. Send back the records to the trial court.

Sd/-

JUDGE

*mn/-