TRL Krosaki Refractories Ltd. Vs SMS Asia Private Limited (Supreme Court of India)
Facts- The facts are that the respondent had issued seven cheques dated 13.03.2015, in all amounting to Rs.1,10,00,000/ in favour of the appellant company. On presentation, the said cheques were dishonoured by the Bank and returned with the endorsement, ‘account closed’. The appellant in that view issued notices dated 14.04.2015 through registered post, acknowledgement due. Though the notices were received on 16.04.2015 as per the postal acknowledgement, the respondent failed to comply with the demand or respond to the same. In that view, the appellant filed the complaint before the learned SubDivisional Judicial Magistrate under Section 138 and 142 of Negotiable Instruments Act, 1881. The said complaint was registered based on the affidavit filed on behalf of the complainant, in lieu of oral sworn statement. The learned SDJM on being satisfied that there is sufficient material and the complaint under Section 138 of N.I. Act against the accused is in accordance with law, took cognizance of the complaint and directed summons to the respondent, vide order dated 05.11.2015.
The respondent however filed a petition in CRLMC No.1210 of 2017 under Section 482 of the Criminal Procedure Code before the High Court claiming to be aggrieved by the order dated 05.11.2015. The respondent, in the said petition had contended that the complaint filed was by an incompetent person without the requisite averments in the complaint, despite which the learned SDJM had taken cognizance and issued summons.
Conclusion- Held that 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. Primafacie, 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 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 therefor and that the contents of the complaint are within his knowledge. 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., dismissal of a complaint at the threshold by the Magistrate on the question of authorisation, would not be justified. Similarly, we are of the view that 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.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
