At, High Court of Rajasthan
By, THE HONOURABLE MR. JUSTICE ATUL KUMAR JAIN
For the Appearing Parties: Mahesh Bora, Senior Advocate with Nishant Bora, M.K. Garg, N.M. Lodha, Senior Advocate with Dr. Sachin Acharya, Mukesh Maheshwari, Advocates.
AtuI Kumar Jain, J.
1. All these thirteen matters relate to different cases of Section 138, Negotiable Instruments Act, 1881 (for short "the Act of 1881") against the accused-non-petitioners. Accused-non-petitioners had filed criminal revisions before the learned Additional Sessions Judge No. 1, Udaipur and the Revisional Court vide order dated 4.9.2012 had quashed the order dated 3.4.2012 passed by Judicial Magistrate No. 1, Udaipur in all the thirteen matters, whereby cognizance was taken by the Trial Court against non-petitioners under Section 138 of the Act of 1881. Aggrieved by the order dated 4.9.2012 passed by Revisional Court in these cases, these criminal revisions have now been filed by the complainant.
2. I have heard learned counsel for both the parties. In the impugned order, the learned Additional Sessions Judge has reached to a conclusion that there is no evidence available on record which shows that Mahaveer Singh Kothari has authorized to act on behalf of the company and oral evidence in this regard should not be acceptable and so the learned Additional Sessions Judge had concluded that the above person (Mahaveer Singh Kothari) had no locus standi to file a complaint and hence cognizance could not have been taken looking to the provisions of Section 142(a) of the Act of 1881. The learned Sessions Judge had observed in the impugned order that the notice which was given to the accused was given by Mahaveer Singh Kothari on behalf of the complainant-company as its Director duly authorized by the resolution passed by the company while actually he was never authorised by the company to act like that.
3. Per contra, the petitioner-complainant has argued that a complaint under Section 138 of the Act of 1881 can be filed any of the Directors of the Company and at the time of cognizance, the Court has to see only basic requirements of Section 138 of the Act of 1881 and the Court was supposed not to conduct the mini trial so as to appreciate the evidence and find out that if the person is authorized to file a complaint under Section 138 of the Act of 1881 or not. It has also been argued on behalf of the complainant-petitioner that the premises taken by the Sessions Court is misconceived because the complainant was filed by the Director of the Company.
4. It has also been argued by the petitioner-complainant that the Revisional Court has wrongly interpreted the following rulings of the Hon'ble Supreme Court :
Milind v. Kalim, 2011 (1) NIJ 353 (SC) : AIR 2011 SC 1588.
5. On the other hand, the complainant-petitioner has taken support from the following rulings in this matter :
(1) Indra Kumar Patodia & Anr. v. Reliance Industries Ltd. & Ors., Criminal Appeal No. 1837 of 2012 reported in 2009 (1) NIJ 39 (SC) decided by the Hon'ble Supreme Court on 22.11.2012.
In the above case, it was held in para 19 that a complaint under Section 138 of the Act of 1881 even without signature is maintainable when such complaint is verified by the complainant and the process is issued by the Magistrate after due verification. It was also held in this case that it was not proved that no prejudice has been caused to the accused for not signing a complaint and the statement made on oath and signed by the complainant had duly safeguarded the interest of the accused. In this regard, Hon'ble the Supreme Court gave much emphasis on the language of Section 142(b) of the Act of 1881 which states that the complaint must necessarily be in writing and the complaint can be presented by the payee or the holder in due course of the cheque and it need not necessarily be signed by the complainant. Para 19 of the judment is important in this respect.
(2) M.M.T.C. Ltd. & Anr. v. Medchl Chemicals & Pharma (P) Ltd. & Anr., (2002) 1 SCC 234 : 2009 (1) NIJ 76 (SC)[NOC]
In this case the question for decision was whether a complaint filed in the name and on behalf of the company by its employee without necessary authorization is maintainable. After analyzing the relevant provisions and language used under Secs. 138 and 142(a) of the NI Act, 1881, the Hon'ble Supreme Court held that such complaint is maintainable and also held that want of authorization can be rectified even at a subsequent stage. In this case, the Court further clarified that only eligiblity is satisfied as the complaint is in the name and on behalf of the appellant-Company. It was further held that even presuming that initially there was no authority, still the company can, at any stage, rectify the defect. It was further held that at subsequent stage, the Company can send a person who is competent to represent the company and concludes that the complaint could thus not have been quashed on this ground.
6. Looking to the principles elucidated by the Hon'ble Supreme Court in the aforesaid case, following rulings are not of much importance. For the satisfaction of the parties, they are mentioned hereinbelow:
(1) National Small Industries Company Ltd. v. State (NCT of Delhi) & Ors., (2009) 1 SCC 407 : 2009 (1) NIJ 249 (SC) : Criminal Appeal No. 1802 of 2008 decided by Hon'ble Supreme Court on 17.11.2008
(2) Milind v. Kalim, 2011 (1) NIJ 353 (SC) : AIR 2011 SC 1588.
(3) Dele & Garrington Invt. (P) Ltd. & Anr. v. P.K. Prathapan & Ors., (2005) 1 SCC 212 : Civil Appeal No. 5915 of 2002 decided on 13.9.2004 by the Hon'ble Supreme Court.
7. After hearing both the parties in the matter, this Court is fully convinced that the law laid down by Hon'ble the Supreme Court in M.M.T.C. Ltd. & Anr. v. Medical Chemicals & Pharma (P) Ltd. & Anr. (supra) is perfectly applicable to this cas
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e. 8. At the stage of cognizance, the learned Revisional Court should not have started a fact finding enquiry or mini trial and all these aspects of the case deserve to be decided only at the later stage of the trial and after evidence of both the parties have been recorded by the Trial Court in the matter. Thus, the impugned order deserves to be quashed, which is hereby quashed. Both the parties are hereby directed to appeal in the Trial Court on 22.10.2013 at 10.00 A.M. Copy of this order be sent to both the Courts below. The revision petitions are disposed of as indicated above. Revision Allowed.