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JUDGMENT
A.S. Bopanna,J.
1. Leave granted.
Digitally signed by
Rajni Mukhi
Date: 2022.02.23
18:35:32 IST
Reason:
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complainant in I.C.C. Case No.422 of 2015 is therefore before
Instruments Act, 1881 (for short ‘N.I. Act’). The said complaint
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complaint and directed summons to the respondentaccused,
by the High Court, would contend that the High Court has
the High Court has not properly appreciated the facts involved
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knowledge and that the complaint was based on the relevant
would also point out that in addition to the fact that he was a
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conclusion that the complaint filed did not satisfy the
“142. Cognizance of offences.—[(1)] Notwithstanding
anything contained in the Code of Criminal Procedure,
1973 (2 of 1974),—
(a) no court shall take cognizance of any offence
punishable under section 138 except upon a
complaint, in writing, made by the payee or,
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as the case may be, the holder in due course
of the cheque;
(b) xxxxxxxxxx
(c) xxxxxxxxxx”
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also entirely based on the guidelines laid down in the said
decision.
Section 142 (1)(a) of N.I. Act in the case of M/s. M.M.T.C. Ltd.
was held that anyone can set the criminal law in motion by
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complainant must be by the payee or the holder in due course.
Bhojwani & Anr. vs. Indusind Bank Ltd. & Ors. (2005) 2
in view and it was held that if the power of attorney holder has
cannot depose for the principal for the acts done by the
clarification.
after holding that the said two judgments of this Court are not
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in conflict with each other has considered the scope and
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“29. From a conjoint reading of Sections 138, 142 and
145 of the NI Act as well as Section 200 of the Code, it
is clear that it is open to the Magistrate to issue
process on the basis of the contents of the
complaint, documents in support thereof and the
affidavit submitted by the complainant in support
of the complaint. Once the complainant files an
affidavit in support of the complaint before issuance of
the process under Section 200 of the Code, it is
thereafter open to the Magistrate, if he thinks fit, to
call upon the complainant to remain present and to
examine him as to the facts contained in the affidavit
submitted by the complainant in support of his
complaint. However, it is a matter of discretion and the
Magistrate is not bound to call upon the complainant
to remain present before the court and to examine him
upon oath for taking decision whether or not to issue
process on the complaint under Section 138 of the NI
Act. For the purpose of issuing process under Section
200 of the Code, it is open to the Magistrate to rely
upon the verification in the form of affidavit filed by
the complainant in support of the complaint under
Section 138 of the NI Act. It is only if and where the
Magistrate, after considering the complaint under
Section 138 of the NI Act, documents produced in
support thereof and the verification in the form of
affidavit of the complainant, is of the view that
examination of the complainant or his witness(s) is
required, the Magistrate may call upon the
complainant to remain present before the court
and examine the complainant and/or his witness
upon oath for taking a decision whether or not to
issue process on the complaint under Section 138
of the NI Act.
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attorney holder alone is personally aware of the
transactions, there is no reason why the attorney
holder cannot depose as a witness. Nevertheless,
an explicit assertion as to the knowledge of the
powerofattorney holder about the transaction in
question must be specified in the complaint. On
this count, the fourth question becomes
infructuous.”
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the Court, nor to examine the complainant of his
witness upon oath for taking the decision whether or
not to issue process on the complaint under Section
138 of the NI Act.
(Emphasis supplied)
above, the complaint was filed in the name of the company i.e.,
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Court. The specimen signature of Mr. Subhasis Kumar Das has
disclose that the complaint under Section 138 NI Act was filed
12. The next aspect on which the High Court has interfered
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transaction between the parties is based on the agreement
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13. Apart from the factual aspects as stated in the
complaint is drafted may vary from case to case and would also
effect that the person who has filed the complaint, is stated to
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authorized person, being a witness to the transaction and
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explicitly stated so as to establish the right of the person
Shipping Co. Pvt. Ltd. Vs. Dolly George (2002) 9 SCC 455,
hereunder:
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16. Further, in National Small Industries Corporation
Ltd. Vs. State (NCT of Delhi) and Ors. (2009) 1 SCC 407, this
keeping in view the scope under Section 200 (a) of Cr.PC, has
under Section 142 thereof. In the said context this Court has
held as hereunder:
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and empowered to represent the company either by
a resolution or by a power of attorney.
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(a) of the proviso to Section 200 of the Code will be
available, even though the complaint is made in the
name of a company or corporation.”
(emphasis supplied)
that the complaint filed is in the name of the “payee” and if the
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payee, the authorisation therefor and that the contents of the
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18. In that view of the matter, we are of the opinion that the
appellant.
be issued.
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further expeditiously and be concluded in a period
indicated above.
..…………....................CJI.
(N.V. RAMANA)
…..…………....................J.
(A. S. BOPANNA)
.…..………......................J.
(HIMA KOHLI)
New Delhi;
February 22, 2022
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