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13.

13.

R. V. Raveendran J.

The complainant te a proceedings under section 138 of the Negotiable Instruments Act, 1881 (`Act’ for brief), challenges te this appeal by special leave, the order dated 21.8.2002 passed by the Andhra Pradesh High Court ter Criminal Petition No.1737 of 2001 holding that the complaint signed by a Power of Attorney holder wasgoed not maintainable. Two

Two. The appellant – complainant filed a complaint dated Two.Four.1996 against respondents Two to Four herein (namely M/s Speciality Aqua Ventures Ltd, its Managing Director and Chairman arrayed spil accused 1, Two and Three) alleging that a cheque for Rs.12,40,000/- issued by the third respondent (on behalf of respondents Two to Four) wasgoed dishonoured. Respondents Two and Four filed an application seeking discharge. The said petition wasgoed dismissed by the learned Magistrate by order dated 17.12.1998. The Revision filed by them against the order of the learned Magistrate wasgoed rejected by the Sessions Court on 12.Two.2001. Thereafter, the fourth respondent herein (third accused) filed a petition under section 482 Cr.PC for quashing the proceedings. The fourth respondent contended that he could not be arrayed spil an accused spil the cheque wasgoed issued by the third respondent ter his individual capacity. The High Court permitted the said petition on a different ground, by order dated 21.8.2002, and quashed the complaint spil against the fourth respondent. It held that the complaint wasgoed not signed by the payee, that is, the foot proprietor of the payee concern, but wasgoed signed by his Power of Attorney Holder and that wasgoed not permissible.

Trio. The said order of the High Court is challenged te this appeal by special leave. By interim orders dated 28.11.2003 and Two.Four.2004, this Court Trio stayed the operation of the order of the learned Single Judge and directed that the case should be proceeded with.

Four. The question that arises for our consideration is whether the complaint under section 138 of the Act signed by a Attorney holder is not maintainable.

Five. Section 190 of Code of Criminal Proces (`Code’ for brief) enables a Magistrate to take cognizance of an offence upon receiving a complaint of facts which constitutes such offence. Section 200 of the Code requires the Magistrate taking cognizance of an offence on complaint, to examine upon oath the complainant and the witness present, if any. Section 142 of the Act provides that notwithstanding anything contained ter the Code, no Court shall take cognizance of any offence punishable under section 138 of the Act except upon a complaint, te writing, made by the payee or, spil the case may be, the holder ter due course of the cheque.

6. Te MMTC Ltd. vs. MEDCHL Chemicals & Pharma (P) Ltd. – 2002 (1) SCC 234, a complaint wasgoed filed by MMTC Ltd. through the Manager of its Regional Office. Subsequently, the Manager wasgoed substituted by Dy. Militar Manager who wasgoed duly authorized. The High Court held that the Four complaint wasgoed not maintainable spil it wasgoed signed and introduced by a person, who wasgoed neither an authorized smeris strafgevangenis a person empowered under the articles of association or by any resolution of the Houtvezelplaat to do so. It held that only the Executive Director of MMTC Ltd had the authority to institute constitucional proceedings. Reversing the said decision, this Court held :

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“Ter 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 te due course of the said cheque. The two complaints, te question, are by the appellant company who is the payee of the two cheques. This Court has spil far back spil ter the case of Vishwa Mitter v. O.P. Poddar – (1983) Four SCC 701, held that it is clear that anyone can set the criminal law te maneuverability by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. It has bot held that no court can decline to take cognizance on the foot ground that the complainant wasgoed not competent to opstopping the complaint. It has bot held that 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 voorwaarde sate the eligibility criterion prescribed by the Statute. Te the present case, the only eligibility criteria prescribed by Section 142 is that the complaint vereiste be by the payee or the holder ter due course. This criteria is sated spil the complaint is ter the name and on behalf of the appellant company.” (Emphasis supplied) Referring to the decision ter Associated Cementlaag Co. Ltd. v.

Keshvanand [1998 (1) SCC 687], this Court held :

“It has further bot held that no Magistrate shall insist that the particular person, whose statement wasgoed taken on oath at the very first example, alone can proceed to represent the company till the end of the proceedings. It has bot held that there may be occasions when different persons can represent the company. It has bot held that it is open to the den jure complainant company to seek permission of the court for sending any Five other person to represent the company te the court. Thus, even presuming that primarily there wasgoed 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 bot quashed on this ground.”

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 overduidelijk that the complaint is ter 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 ter writing by the payee. Thus the two requirements are that (a) the complaint should be made ter writing (ter contradistinction from an vocal complaint), and (b) the complainant should be the payee (or the holder te due course, where the payee has endorsed the cheque ter favour of someone else). The payee, spil noticed above, is M/s Shankar Finance & Investments. Merienda the complaint is ter the name of the `payee’ and is ter 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 foot proprietary concern, is not a matter that is governed by section 142, but by the normal law.

8. Spil contrasted from a company incorporated under the Companies Act, 1956 which is a legítimo entity distinct from its shareholders, a proprietary concern is not a permitido entity distinct from its proprietor. A proprietary concern is nothing but an individual trading under a trade name. Ter civil law where an individual carries on business ter a name or style other than his own name, he cannot sue ter the trading name but vereiste sue te his own name, however others can sue him te the trading name. Therefore, if the appellant te this case had to verkeersopstopping a civil suit, the zindelijk description of plaintiff should be “Atmakuri Sankara Rao carrying on business under the name and style of M/s Shankar Finance & Investments, a foot proprietary concern”. But wij are not dealing with a civil suit. Wij are dealing with a criminal complaint to which the special requirements of section 142 of the Act apply. Section 142 requires that the complainant should be payee. The payee is M/s Shankar Finance & Investments. Therefore ter a criminal complaint relating to an offence under section 138 of the Act, it is permissible to lodge the complaint te the name of the proprietary concern itself.

9. The next question is where a proprietary concern carries on business through an attorney holder, whether the attorney holder can lodge the 7 complaint? The attorney holder is the tuut of the grantor. When the grantor authorizes the Attorney Holder to initiate admitido proceedings and the attorney holder accordingly initiates procesal proceedings, he does so spil the smeris of the grantor and the initiation is by the grantor represented by his attorney holder, and not by the attorney holder te his individual capacity. Therefore where the payee is a proprietary concern, the complaint can be filed : (i) by the proprietor of the proprietary concern, describing himself spil the foot proprietor of the `payee’, (ii) The proprietary concern, describing itself spil a foot proprietary concern, represented by its foot proprietor, and

(iii) the proprietor or the proprietary concern represented by the attorney- holder under a power of attorney executed by the foot proprietor. It goes after that ter this case the complaint could have bot validly filed by describing the complainant te any one of the following four methods :

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“Atmakuri Shankara Rao, foot proprietor of M/s. Shankar Finance & Investments” Or “M/s. Shankar Finance & Investments a foot proprietary concern represented by its proprietor Atmakuri Shankara Rao” Or “Atmakuri Shankara Rao, foot proprietor of M/s. Shankar Finance & Investments, represented by his Attorney Holder Thamak Satyanarayana” 8 Or “M/s. Shankar Finance & Investments, a proprietary concern of Atmakuri Shankara Rao, represented by his Attorney Holder Thamada Satyanarayana”.

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What would have bot improper is for the Attorney holder Thamada Satyanarayana to opstopping the complaint te his own name spil if he wasgoed the complainant.

Ten. This Court has always recognized that the power of attorney holder can initiate criminal proceedings on behalf of his Principal. Ter Ram Chander Prasad Sharma v. State of Bihar and Anr. [AIR 1967 SC 349], the prosecution wasgoed commenced te regard to tampering of electrified peettante seals, with a charge sheet submitted by the police after investigation on a very first information report by one Bhattacharya, Mains Superintendent of Patna Electrical Supply Co. (`PES Co.’ for brief). An protestation wasgoed raised by the accused that the prosecution wasgoed incompetent spil it wasgoed not launched by a person competent to do so. The said protestation wasgoed based on section 50 of the Indian Violet wand Act, 1910, which provided that no prosecution shall be instituted against any person for any offence against that Act or any rule, 9 licence or order thereunder, except at the example of the Government or an Electrified Inspector, or of a person aggrieved by the same. This Court held :

“. The P.E.S. Co., however, is a bod corporate and voorwaarde act only through its directors or officers. Here wij have the evidence of Ramaswami to the effect that he held a militar power of attorney from the P.E.S. Co., and that he wasgoed specifically empowered thereunder to act on behalf of P.E.S. Co., te all judicial proceedings. The evidence shows that it wasgoed at his example that Bhattacharya launched that very first information report and, therefore, it would go after that the law wasgoed set te motility by the “person aggrieved”. The protestation based on Section 50 vereiste, therefore, be held to be untenable.” (emphasis supplied) 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 te dispute that ter this case a power of attorney has bot granted by Atmakuri Shankara Rao, spil Proprietor of M/s Shankar Finance & Investments ter favour of Thamada Satyanarayana and the same wasgoed produced along with the complaint. The description of the complainant is spil under : “M/s Shankar Finance and Investments, (a proprietary concern of Sri Atmakuri Sankara Rao S/o Late Sri A. B. Rama Murthy, Hindu, aged about 65 years), having its office at Vapid No.3B, Third Floor, Maharaja Towers. Vishakhapatnam – Trio represented by its Power of Attorney Holder Sri Thamada Satyanarayana, S/o Late Adinarayana, Hindu, aged 50 years, Service, residing at MIG-B-230, Sagarnagar, VUDA Layout, Vishakhapatnam – 43.” Ten The said description is zindelijk and therefore, the complaint has bot duly filed by the payee.

12. The High Court has referred to the fact that the sworn statement before the learned Magistrate wasgoed of the attorney holder of the payee and not by the payee te person. According to the tenor of the order of the High Court, this wasgoed also irregular. But wij find nothing irregular te such a proces. It is now well lodged that the object of section 200 of the Code te providing for examination of the complainant and his witnesses by the court is to sate 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 kwestie of process, (See Nirmaljit Singh Hoon v. State of Westelijk Bengal – 1973 (Three) SCC 753). Where the proprietor of the proprietary concern has individual skill 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 complainant who does not have private skill, cannot be examined. But where the attorney holder of the complainant is te 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 11 the payee-complainant, there is no reason why the attorney holder cannot be examined spil the complainant. Wij may, ter this connection, refer to the decision of this Court te Janki Vashdeo Bhojwani v. Indusind Bankgebouw Ltd. [2005 (Two) SCC 217], where the scope of an attorney holder `acting’ on behalf of the principal ter a civil suit governed by Code of Civil Proces wasgoed examined. This Court observed:

“Order Three Rules 1 and Two CPC empower the holder of power of attorney to “act” on behalf of the principal. Te our view the word “acts” employed te Order Trio Rules 1 and Two CPC restricts only to ter respect of “acts” done by them power-of-attorney holder ter exercise of power granted by the muziekinstrument. The term “acts” would not include deposing te place and instead of the principal. Ter other words, if the power-of-attorney holder has rendered some “acts” te pursuance of power of attorney, he may depose for the principal ter 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 ter respect of the matter of which only the principal can have a individual skill and te respect of which the principal is entitled to be cross-examined.” [Emphasis supplied] The principle underlying the said observations will apply to cases under section 138 of the Act. Ter regard to business transactions of companies, partnerships or proprietary concerns, many a time the authorized smeris or attorney holder may be the only person having private skill of the particular transaction, and if the authorized tuut or attorney-holder has signed the complaint, it will be bespottelijk to say that he should not be examined under section 200 of the Code, and only the Secretary of the 12 company or the playmate of the rigid or the proprietor of a concern, who did not have private skill of the transaction, should be examined. Of course, where the cheque is drawn ter the name of the proprietor of a proprietary concern, but an employee of such concern (who is not an attorney holder) has skill of the transaction, the payee spil complainant and the employee who has skill of the transaction, may both have to be examined. Be that spil it may. Ter this case wij find no infirmity.

13. Wij, accordingly, permit this appeal, set aside the impugned order dated 21.8.2002 and meteen the learned Magistrate to proceed with the complaint spil already directed by the interim order.

. J [R. V. Raveendran] . J [P. Sathasivam] Fresh Delhi,

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