At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE VED PRAKASH VAISH
For the Petitioner: Trideep Pais Ashwath, Advocate. For the Respondents: Surender Kumar, Advocate.
1. By way of this petition under Section 482 Code of Criminal Procedure, 1973 (hereinafter referred to as `Cr.P.C.’) read with Article 227 of the Constitution of India, the petitioner seeks setting aside of the impugned order dated 9.1.2013 passed by Metropolitan Magistrate, New Delhi in CC No.2138/2009 whereby the application filed on behalf of the petitioner for taking on record the board resolution dated 26.6.2009 was dismissed.
2. In short, the facts of the case are that the petitioner filed a complaint for the offence under Section 138 read with Section 141 of the Negotiable Instruments Act against the respondent regarding dishonour of cheque No.095391 for Rs.30,000/- (Rupees thirty thousand) and cheque No.095392 for Rs.45,000/- (Rupees forty five thousand), both drawn on Hong Kong and Shanghai Banking Corporation Limited on 11.3.2009. Notice under Section 251 Cr.P.C. was issued to the respondents on 21.10.2010. The authorised representative of the complainant namely Mr. Sunil Nair (CW-1) was examined on 22.2.2012. Statement of accused under Section 313 Cr.P.C. was recorded on 16.4.2012. On 26.5.2012, an application for placing on record the board resolution of the complainant company, authorising Mr. Sunil Nair was filed. Another application dated 5.6.2012 for substitution of application dated 26.5.2012 and for taking on record the board resolution dated 26.6.2009 authorising Mr. Sunil Nair was filed. Vide impugned order dated 9.1.2013, the said application was dismissed by the learned trial court.
3. Learned counsel for the petitioner contends that during cross-examination of (CW-1) Mr. Sunil Nair, (authorised representative of the complainant company), a question was put on behalf of the accused persons whether board resolution authorising him to represent the complainant company has been placed on record. The witness (CW-1) replied that he does not remember whether the board resolution has been placed on record. However, he volunteered that if required, he will produce the same.
4. Counsel for the petitioner submits that the Board Resolution dated 26.6.2009, authorising Mr. Sunil Nair to sign the complaints, vakalatnama, affidavit, petition, objections and statements etc. was filed along with the application dated 26.5.2012. He also submits that board resolution could not be filed due to inadvertence and no prejudice would be caused to the respondent, if the board resolution is taken on record.
5. On the other hand, learned counsel for the respondents submits that the petitioner is delaying the matter. The board resolution authorising Mr. Sunil Nair to sign and verify the complaint was not filed along with the complaint. The petitioner moved an application dated 26.5.2012 seeking permission to place on record the board resolution dated 26.6.2009 and thereafter on 5.6.2012 filed another application for substitution of application dated 26.5.2012 and to take on record the Board Resolution. Counsel further submits that Mr. Sunil Nair has already been examined and statement of the accused under Section 313 Cr.P.C. has also been recorded and the application has been filed at a belated stage.
6. I have heard the counsel for both the parties and have also perused the material placed on record.
7. It is a well settled principal of law that rules of procedure are handmade of justice and should never be made a tool to deny justice or perpetuate injustice. The procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice.
8. The Apex Court in the case of Vishwa Mitter vs. O.P. Poddar, (1983) 4 SCC 701 has observed that any one can set criminal law in motion by filing a complaint of facts constituting an offence before a magistrate and entitled to take cognizance. It has been held that no court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. It was further held that if any special statute prescribes offences and makes any special provisions 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.
9. Further in Associated Cement Co. Ltd. v. Keshvanand, (1998) 1 SCC 687 it has been held by the Hon’ble Supreme Court that the complainant has to be a corporeal person who is capable of making a physical appearance in the court. It has been held that if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court. It is held that the court looks upon the natural person to be the complainant for all practical purposes. It is held that when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in court proceedings. It has further been held that 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. 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 initially 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. As per Section 140 of the Negotiable Instruments Act, the complaint must be filed by the payee or the holder in due course. In the instant case, the complaint was filed by Mr. Sunil Nair, authorised representative of the complainant but no Board Resolution passed by board of directors was f
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iled along with the said complaint. Later on a copy of the Board Resolution dated 26.6.2009 was filed along with an application. 11. In my opinion, an opportunity ought to have been granted to the petitioner to place the documents containing authorisation on record. 12. In view of the above, the petition is allowed and copy of the resolution passed by board of directors on 26.6.2009 is taken on record and the trial court is directed to proceed further in accordance with law. 13. Accordingly, the petition stands disposed of. 14. Trial court record be sent back forthwith. Crl.M.A. No. 2579/2013 Dismissed as infructuous.