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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.73 OF 2007

A.C. NARAYANAN    … APPELLANT         

V/s

STATE OF MAHARASHTRA & ANR.    … RESPONDENTS

With

CRIMINAL APPEAL NO.1437  OF 2013

SHRI G. KAMALAKAR    … APPELLANT    

V/s

M/S SURANA SECURITIES LTD. & ANR.    … RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

As  the  question  of  law  involved  is  common  in  both  the  

appeals, they are heard together and disposed of by this common  

judgment.  

Criminal Appeal No.73 of 2007

2. Brief facts of the case are as follows:

The accused–appellant,A.C. Narayanan challenged the common  

order dated 29th November, 2000 passed by the Additional Chief  

Metropolitan Magistrate, 9th Court, Bandra, Mumbai (hereinafter  

referred to as the, ‘Trial Court’) by filing applications u/s 482  

of the Code of Criminal Procedure, 1973 before the High Court.

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By  the  said  common  order  the  applications  preferred  by  the  

appellant-A.C.Narayanan  for discharge/recalling  process  against  

him was rejected by the Trial Court. The High Court by impugned  

judgment  dated  12th  August,  2005,  dismissed  the  applications  

preferred by the appellant and upheld the order passed by the  

Trial Court.  

3. The appellant is the Vice-Chairman and Managing Director of  

the Company M/s Harvest Financials Ltd. (hereinafter referred to  

as the “Company”) having its registered office at Bombay. Under a  

scheme of investment, the appellant collected various amounts  

from various persons in the form of loans and in consideration  

thereof issued post-dated cheques either in his personal capacity  

or as the signatory of the Company which got dishonoured.

4. Respondent No. 2-Mrs. Doreen Shaikh is the power of attorney  

holder of six complainants, namely Mr.Yunus A. Cementwalla, Smt.  

Fay Pinto, Mr. Mary Knoll Drego, Smt. Evelyn Drego, Mr. Shaikh  

Anwar Karim Bux and Smt. Gwen Piedade.  On 16th December, 1997,  

Respondent  No.2  on  behalf  of  the  six  complainants  filed  

Complaint  Case  Nos.292/S/1998,  293/S/1998,  297/S/1998,  

298/S/1998, 299/S/1998 and  300/S/1998 respectively against  the  

appellant herein under Sections 138 and 142 of the Negotiable  

Instruments  Act,  1881  (hereinafter  referred  to  as  the,  ‘N.I.  

Act’) before the Trial Court.  The said Respondent No. 2 verified  

the complaint in each of those cases as Power of Attorney Holder  

of the complainants. The Additional Chief Metropolitan Magistrate

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vide  order  dated  04th April,  1998  issued  process  against  the  

appellant u/s 204 of the Cr.P.C for the offences punishable under  

Sections 138 and 142 of the N.I. Act.

5. The  appellant,  being  aggrieved  moved  an  application  for  

discharge/recall of process in each of the complaints. The Trial  

Court vide common order dated 29th November, 2000 dismissed the  

applications filed by the appellant.

6. The appellant being aggrieved preferred applications being  

Criminal Application Nos.797, 798, 799, 801, 802 and 803 of 2002  

before the High Court for calling for the records of the case  

pending in the Trial Court. By impugned order dated 12th August,  

2005 the said applications were dismissed by the High Court.

Criminal Appeal No.1437 of 2013

7. The brief facts of the case is as follows:

This appeal has been preferred by the accused-G. Kamalakar  

against the judgment and order dated 19th September, 2007  passed  

by the High Court of Judicature,  Andhra Pradesh of Hyderabad in  

Criminal Appeal No. 578 of 2002.   By the impugned judgment,  the  

High Court allowed the appeal preferred by the 1st respondent- M/s  

Surana Securities Ltd. (hereinafter referred to as the ‘Company’)  

set  aside  the  judgment  of  acquittal  dated  30th October,  2001  

passed  by  the  XVIII  Metropolitan  Magistrate,  Hyderabad  in  CC  

No.18 of 2000 convicted the appellant under Section 138 of the  

N.I. Act  and   sentenced  the  appellant  to pay a  fine  of  Rs.  

6,10,000/-,  out of which an amount of  Rs. 6,00,000/- was to be

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paid to the complainant towards compensation and in default to  

suffer simple imprisonment for a period of one month.

8. The  1st respondent -  M/s Surana Securities  Ltd.  is  the  

complainant and is a limited Company  carrying on business of  

trading in shares.   The appellant-G. Kamalakar is the client of  

the 1st respondent-Company  and used to trade in shares.  During  

the course of business, the appellant-G. Kamalakar became liable  

to pay  an amount of Rs. 7,21,174/- towards  the respondent-

Company.   In  order  to  discharge  the  said  liability,   the  

appellant issued six cheques amounting to Rs. 1,00,000/- each and  

another cheque for Rs. 1,21,174/- of  different dates.    When  

first six cheques were presented for encashment on 18th September,  

1997,  the  same  got  dishonoured  with  an  endorsement  “funds  

insufficient”.  Upon  receiving  such  information,  the  Company  

issued a legal notice to the appellant to pay the amount but the  

same was not paid by the appellant.

9. The Board of Directors of the 1st respondent-Company, by a  

resolution authorized its Managing Director to appoint an agent  

to represent the Company.  Pursuant thereto, one Shri V. Shankar  

Prasad was appointed as an agent by executing a General Power of  

Attorney.   Later, he was substituted by one Shri Ravinder Singh  

under another General Power of Attorney. The respondent-Company  

filed a complaint under Section 138 of the N.I. Act being CC No.  

1098  of  1997  in  the  Court  of  XIth  Metropolitan  Magistrate,  

Secunderabad.  The complaint was transferred to the Court of

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XVIIIth Metropolitan Magistrate, Hyderabad by order dated 3rd May,  

2000 and was registered as CC No. 18 of 2000.  By judgment dated  

30th October,  2001,  the  Metropolitan  Magistrate  dismissed  the  

complaint filed by the respondent-Company u/s 138 of the N.I.  

Act.

10. Aggrieved  by the  said  order, respondent-Company  filed  an  

appeal being Criminal No. 578 of 2002 before the High Court of  

Judicature, Andhra Pradesh at Hyderabad. By the impugned judgment  

dated 19th September, 2007, the High Court allowed  the  appeal,  

set aside the judgment dated 30th October, 2001 passed by the  

XVIIIth  Metropolitan  Magistrate,  Hyderabad  and  convicted  the  

appellant u/s 138 of the N.I. Act. Against the aforesaid order of  

conviction, the present appeal has been preferred.

11. On 4th January, 2007, in view of the difference of opinion  

among various High courts as also decisions of this Court in  

M.M.T.C. Ltd. and Anr.  vs. Medchl Chemicals and Pharma(P) Ltd.  

and Anr., (2002) 1 SCC 234 and Janki Vashdeo Bhojwani and  Anr.  

vs.  Indusind Bank Ltd. and Ors.,  (2005) 2 SCC 217 referred the  

matter to larger bench. The entire order of reference reads as  

under:

“Delay  in  filing  counter  affidavit  is  

condoned.

Leave granted.

Interpretation  and/or  application  of  Section 142(a) of the Negotiable Instruments  Act, 1881, (“NI Act”) is in question in this  appeal which arises out of a judgment and  order  dated  12.8.2005  passed  by  a  learned

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Single Judge of the High Court of Judicature  at Bombay.

The basis fact of the matter is not in  dispute.

Several cheques on different dates were  issued by the applicant herein  which were  dishonoured.  The complaint petitions in the  Court  of  Additional  Chief  Metropolitan  Magistrate, Bandra,  Mumbai.   The complaint  petitions  were  filed  in  the  name  of  the  respective payees of  the cheques.  She also  filed affidavits in support of the averments  made  in  the   said  complaint  petitions.  Cognizance of offence under Section 138 of  the N.I. Act was taken against the appellant.  Summons  were  issued.     Questioning  the  order  issuing  summons  by  the  learned  Magistrate  in  exercise  of  his  power  under  Section  204  of  the  Code  of  Criminal  Procedure,   appellant herein filed criminal  application  before   the  High  Court  of  Judicature  at  Bombay,   inter  alia,  contending  that  the  complaint  petitions  filed by the Power of Attorney Holder was not  maintainable and relying thereupon or on the  basis  thereof the learned Magistrate could  not  have  issued  summons.    The  said  contention  has  been  negative  by  the  High  Court in its impugned judgment.   In the aforementioned premises interpretation  of  Section 142 (a) of the N.I. Act comes up  for consideration before us.  We may notice  that  in  M.M.T.C.  and  Anr.  vs.  Medchl  Chemicals & Pharma (P) Ltd. and Anr. (2002)1  SCC 234,  a Division Bench of  this Court  has opined.:

“This Court has,  as far  back as,  in  the  case  of  Vishwa  Mitter  v. O.P. Poddar,  (1983) 4 SCC 701 held that it is clear that  anyone can set the Criminal law in motion by  filing a complaint of facts constituting an  offence before a Magistrate entitled to take  cognizance  on  the  sole  ground  that  the  complainant  was  not  competent  to file  the  complaint.   It has been 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

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take cognizance of the office  must satisfy  the eligibility criterion prescribed by the  statute.   In the present case,  the  only  eligibility  criteria  prescribed  by  Section  142 is that the  complaint must be  by the  payee  or the holder in due course.   This  criteria is satisfied as the complaint is in  the  name  and  on  behalf  of  the  appellant  Company” However,   in  a  later  judgment  in  Janki  Vashdeo Bhojwani and Anr. vs. Indusind Bank  Ltd. and Ors. , 2005(2)SCC 217,  albeit in a  different context,  another Division Bench of  this  Court  overruled  the  judgment  of  the  Bombay  High  Court  in  Pradeep  Mohanbay  vs.  Minguel  Carlos  Dias,  [2000(1)Bom.L.R.908),  inter alia opining as follows:

“Order 3 Rules 1 and 2 CPC empowers the  holder  of  power  of  attorney  to  ‘act’  on  behalf of the  principal.  In our view the  word ‘acts’ employed in Order 3 Rules 1 and 2  CPC  confines only to in  respect of ‘acts’  done  by  the  power-of-attorney  holder  in  exercise of power granted by the instrument.  The term ‘acts’ would not include deposing  in place and instead of the principal.  In  other words,  if the power of attorney holder  has  rendered  some  ‘acts’  in  pursuance  of  power of attorney,  he may depose for the  principal in 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 in respect of the matter of which  only the principal is entitled to be cross- examined.”

“on the question of power of attorney,  the High Courts have divergent views.     In  the case of Shambhu Dutt Shastri vs. State of  Rajasthan  [1986 2 WLN 713 (Raj.)]  it was  held that a general power-of- attorney holder  can appear, plead and act on behalf of the  party  but  he  cannot  become  a  witness  on  behalf of the  party.   He can only appear in  his own witness box on behalf of himself.  To appear in a witness box is altogether a  different  act.  A  general  power-of-attorney  holder  cannot  be  allowed  to  appear  as  a

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witness on behalf of the plaintiff in the  capacity of the plaintiff.”

“However, in the case of  Humberto Luis  v. Gloriano Armado  Luis  [(2002) 2 Bom. CR  754)  on which reliance has been placed by  the Tribunal in the present case,  the High  Court took a dissenting view and held that  the provisions contained in Order 3 Rule 2  CPC  cannot  be  construed  to  disentitle  the  power-of-attorney holder to depose on behalf  of  his  principal.  The  High  Court  further  held that the word ‘act’ appearing in Order 3  Rule 2 CPC takes within its sweep ‘depose’.  We are unable to agree with this view taken  by  the  Bombay  High   Court in Floriano Armando.”

It is not in dispute that there is a  conflict  of  opinion  on  this  issue  amongst  various High Courts, including the decision  of  Bombay  High  Court  in  Mamtadevi  Prafullakumar  Bhansali  vs.  Pushpadevi  Kailashkumar Agrawal & Anr.   [2005 (2) Mah.  L.J. 1003)  on the one hand and a decision of  the  Andhra  Pradesh  High  Court  in  S.P.  Sampathy  vs.  Manju  Gupta  and  Anr. (2002)  Crl.L.J. 2621),  on the other. One of the  questions  which  would  arise  for  consideration  is  as  to  whether  the  eligibility  criteria  prescribed  by  Section  142(a)  of the NI Act would stand satisfied  if the complaint petition itself is filed in  the name of the payee or  the holder in due  course  of  the  cheque  and/or  whether  a  complaint   petition  has  to  be  presented  before the Court by the payee or the holder  of the cheque himself.   

Another  issue  which  would  arise  for  consideration is as to  whether the payee  must  examine  himself  in  support  of  the  complaint  petition  keeping  in  view  the  insertion of Section 145 of the Said Act (Act  No. 55 of 2002).

In our opinion, in view of difference of  opinion amongst various High Courts as also  the decisions of this Court in M.M.T.C. Ltd.  (Supra)  and Janki Vashdeo Bhojwani (supra),  particularly in view of the fact that in the  later case the earlier one was not noticed,  an authoritative pronouncement is necessary

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to be given in this regard.   We, therefore,  are of the opinion that the matter should be  considered by a larger Bench.”

12. The matter was considered by a larger Bench of three Judges.  

By judgment dated 13th September, 2013 reported in 2013 (11) SCALE  

360 –  A.C. Narayanan vs.  State of Maharashtra the said larger  

Bench framed the following questions:

(i) Whether a Power of Attorney holder can  

sign and file a complaint petition behalf of the  

complainant?  Whether  the  eligibility  criteria  

prescribed by Section 142(a) of NI Act would stand  

satisfied  if  the  complaint  petition  itself  is  

filed in the name of the payee or the holder in  

due course of the cheque?

(ii)  Whether a Power of Attorney holder can  

be varied on oath under Section 200 of the Code?

(iii) Whether specific averments as to the  

knowledge of the Power of Attorney holder in the  

impugned transaction must be explicitly asserted  

in the complaint?

(iv) If the Power of Attorney holder fails to  

assert explicitly his knowledge in the complaint  

then can the Power of Attorney holder verify the  

complaint  on  oath  on  such  presumption  of  

knowledge?

(v) Whether  the  proceedings  contemplated  

under Section 200 of the Code can be dispensed  

with in the light of Section 145 of the N.I. Act  

which was introduced by an amendment in the year  

2002?

13. The first question relating to the eligibility of Power of  

Attorney holder to sign and file a complaint petition on behalf

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of the complainants and whether eligibility criteria prescribed  

by Section 142(a) of  N.I. Act is satisfied, if the  complaint  

petition itself is filed in the name of  the payee or the holder  

in due course of the cheque,  was answered by larger Bench in  

affirmative  by  its  judgment  in  A.C.  Narayanan vs.  State  of  

Maharashtra, 2013(11) Scale 360 with observation, which reads as  

follows:

“19) As  noticed  hereinabove,  though  Janki  Vashdeo Bhojwani(supra), relates to powers of  Power of Attorney holder under CPC but it was  concluded therein that a plaint by a Power  of Attorney holder on behalf of the original  plaintiff  is  maintainable  provided  he  has  personal  knowledge  of  the  transaction  in  question. In a way, it is an exception to a  well settled position that criminal law can  be  put  in  motion  by  anyone  [vide  Vishwa  Mitter (supra)] and under the Statute, one  stranger to transaction in question, namely,  legal heir etc., can also carry forward the  pending criminal complaint or initiate the  criminal action if the original complainant  dies [Vide Ashwin Nanubhai Vyas vs. State of  Maharashtra  (1967)  1  SCR  807].  Keeping  in  mind various situations like inability as a  result  of  sickness,  old  age  or  death  or  staying abroad of the payee or holder in due  course to appear and depose before the Court  in  order  to  prove  the  complaint,  it  is  permissible for the Power of Attorney holder  or for the legal representative(s) to file a  complaint and/or continue with the 21 Page 22  pending criminal complaint for and on behalf  of payee or holder in due course. However, it  is  expected  that  such  power  of  attorney  holder  or  legal  representative(s)  should  have knowledge about the  transaction in question so as to able to bring on record  the  truth  of  the  grievance/offence,  otherwise,  no  criminal  justice  could  be  achieved  in  case  payee  or  holder  in  due  course, is unable to sign, appear or depose  as  complainant due to above quoted reasons.

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Keeping  these  aspects  in  mind,  in  MMTC  (supra), this Court had taken the view that  if complaint is filed for and on behalf of  payee or holder in due course, that is good  enough compliance with Section 142 of N.I.  Act. “

14. The second question relating to verification of Power of  

Attorney holder on oath as prescribed under Section 200 of the  

Code was answered as follows:-

“20) The stand of the appellant in Criminal  Appeal No. 73 of 2007 is that no complaint  can  be  filed  and  no  cognizance  of  the  complaint can be taken if the complaint is  by the power of attorney holder, since it is  against Section 200 of the Code and deserves  to  be  rejected.  There  is  no  dispute  that  complaint has to be filed by the complainant  as contemplated by Section 200 of the Code,  but  the  said  Section  does  not  create  any  embargo  that  the  attorney  holder  or  legal  representative(s) cannot be a complainant.

22) From a conjoint reading of Sections 138,  142  and  145  of  the  N.I.  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  N.I.  Act.  For  the  purpose  of  issuing  process  under  Section  200  of  the

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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  N.I.  Act.  It  is  only  if  and  where  the  Magistrate, after considering the complaint  under Section 138 of the N.I. 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 N.I. Act.  

23) In the light of the discussion, we are  of  the  view  that  the  power  of  attorney  holder may be allowed to file, appear and  depose for the purpose of issue of process  for the offence punishable under Section 138  of the N.I. Act. An exception to the above is  when  the  power  of  attorney  holder  of  the  complainant  does  not  have  a  personal  knowledge  about  the  transactions  then  he  cannot  be  examined.  However,  where  the  attorney  holder  of  the  complainant  is  in  charge  of  the  business  of  the  complainant  payee  and  the  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  Power  of  Attorney  holder  about  the  transaction in question must be specified in  the  complaint.  On  this  count,  the  fourth  question becomes infructuous.

24) In view of the discussion, we are of the  opinion that the attorney holder cannot file  a complaint in his own name as if he was the  complainant,  but  he  can  initiate  criminal  proceedings on behalf of his principal. We  also  reiterate  that  where  the  payee  is  a  proprietary  concern,  the  complaint  can  be  filed  (i)  by  the  proprietor  of  the  proprietary  concern,  describing  himself  as  the sole proprietor of the “payee”; (ii) the

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proprietary concern, describing itself as a  sole proprietary concern, represented by its  sole proprietor; and (iii) the proprietor or  the  proprietary  concern  represented  by the  attorney  holder  under  a  power  of  attorney  executed by the sole proprietor.

25)  Similar  substantial  questions  were  raised in the appeal arising out of S.L.P  (Crl.) No. 2724 of 2008, which stand answered  as  above.  Apart  from  the  above  questions,  one distinct query was raised as to whether  a person authorized by a Company or Statute  or Institution can delegate powers to their  subordinate/others  for  filing  a  criminal  complaint? The issue raised is in reference  to validity of sub-delegation of functions  of  the  power  of  attorney. We  have already  clarified  to  the  extent  that  the  attorney  holder  can  sign  and  file  a  complaint  on  behalf  of  the  complainant-payee.  However,  whether  the  power  of  attorney  holder  will  have   the   power  to further  delegate  the  functions to another person will  completely  depend on the terms of the general power of  attorney.  As a result, the authority to sub- delegate  the  functions  must  be  explicitly  mentioned in the general power of attorney.  Otherwise,    the  sub-delegation  will  be  inconsistent  with  the  general  power  of  attorney and thereby will be invalid in law.  Nevertheless, the general power of attorney  itself  can  be  cancelled  and  be  given  to  another person.”

15. While holding that there is no serious conflict between the  

decisions in “MMTC (supra) and Janki Vashdeo Bhojwani (supra)”,  

the  larger  Bench  clarified  the  position  and  answered  the  

questions framed in the following manner:

“(i)  Filing  of  complaint  petition  under  Section  138  of  N.I  Act  through  power  of  attorney is perfectly legal and competent.

(ii) The Power of Attorney holder can depose  and verify on oath before the Court in order  to  prove  the  contents  of  the  complaint.

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However, the power of attorney holder must  have witnessed the transaction as an agent of  the payee/holder in due course or possess due  knowledge regarding the said transactions.

(iii) It is required by the complainant to  make specific assertion as to the knowledge  of the power of attorney holder in the said  transaction explicitly in the  complaint and  the  power  of  attorney  holder  who  has  no  knowledge regarding the transactions cannot  be examined as a witness in the case.  

(iv) In the light of section 145 of N.I Act,  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 N.I Act  and  the  Magistrate  is  neither  mandatorily  obliged  to  call  upon  the  complainant  to  remain  present  before  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 N.I. Act.

(v) The functions under the general power of  attorney  cannot  be  delegated  to  another  person without specific clause permitting the  same in the power of attorney. Nevertheless,  the general power of attorney itself can be  cancelled and be given to another person.”

Case of A.C. Narayanan

16. In  this  case  Magistrate  had  taken  cognizance  of  the  

complaint without prima facie establishing the fact as to whether  

the Power of Attorney existed in first place and whether it was  

in order. It is not in dispute that the complaint against the  

appellant was not preferred by the payee or the holder in due  

course and the statement on oath of the person who filed the  

complaint has also not stated that he filed the complaint having

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been instructed by the payee or holder in due course of the  

cheque.  Since  the  complaint  was  not  filed  abiding  with  the  

provisions of the Act, it was not open to the Magistrate to take  

cognizance.   

17. From the bare perusal of the said complaint, it can be seen  

that except mentioning in the cause title there is no mention of,  

or a reference to the Power of Attorney in the body of the said  

complaint nor was it exhibited as part of the said complaint.  

Further, in the list of evidence there is just a mere mention of  

the words at serial no.6  viz. “Power of Attorney”, however there  

is no date or any other particulars of the Power of Attorney  

mentioned in the complaint. Even in the verification statement  

made by the respondent no.2, there is not even a whisper that she  

is filing the complaint as the Power of Attorney holder of the  

complainant.  Even  the  order  of  issue  of  process  dated  20th  

February, 1998 does not mention that the Magistrate had perused  

any Power of Attorney for issuing process.  

18. The appellant has stated that his Advocate conducted search  

and inspection of the papers and proceedings of the criminal  

complaint and found that no Power of Attorney was found to be a  

part  of  that  record.  This  has  not  been  disputed  by  the  

respondents. In that view of the matter and in light of decision  

of  the  larger  Bench,  as  referred  above,  we  hold  that  the  

Magistrate wrongly took cognizance in the matter and the Court  

below erred in putting the onus on the appellant rather than the

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complainant. The aforesaid fact has also been overlooked by the  

High Court while passing the impugned judgment dated 12th August,  

2005.   

19. In the result, the impugned judgment dated 12th August, 2005  

passed by the High Court of Judicature at Bombay and the order  

dated  29th November,  2000  passed  by  the  Additional  Chief  

Metropolitan Magistrate, 9th Court, Bandra, Mumbai are set aside  

and  the  proceedings  in  question  against  the  appellant  are  

quashed.  

Case of G. Kamalakar

20. In this case it is not in dispute that the complaint was  

filed by one Shri V. Shankar Prasad claiming to be General Power  

of Attorney of the complainant company. Subsequently PW-1 Shri  

Ravinder Singh gave the evidence on behalf of the Company under  

the General Power of Attorney given by the complainant Company.  

The  complaint  was  not  signed  either  by  Managing  Director  or  

Director of the Company.  It is also not in dispute that PW-1 is  

only the employee of the Company.  As per Resolution of the  

Company  i.e.  Ex.P3  under  first  part  Managing  Director  and  

Director are authorized to file suits and criminal complaints  

against the debtors for recovery of money and for prosecution.  

Under third part of the said Resolution they were authorized to  

appoint or nominate any other person to appear on their behalf in  

the Court and engage lawyer etc.  But nothing on the record  

suggest that an employee is empowered to file the complaint on

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behalf  of  the  Company.   This  apart,  Managing  Director  and  

Director  are  authorized  persons  of  the  Company  to  file  the  

complaint by signing and by giving evidence. At best the said  

persons can nominate any person to represent themselves or the  

Company before the Court.  In the present case one Shri Shankar  

Prasad  employee  of  the  Company  signed  the  complaint  and  the  

Deputy General Manager of the Company i.e. PW-1 gave evidence as  

if he knows everything though he does not know anything.  There  

is nothing on the record to suggest that he was authorized by the  

Managing  Director  or  any  Director.  Therefore,  Magistrate  by  

judgment dated 30th October, 2001 rightly acquitted the appellant.  

In such a situation, the case of the appellant is fully covered  

by decision by the larger bench of this Court passed in the  

present appeal.  We have no other option but to set aside the  

impugned judgment dated 19th September, 2007 passed by the High  

Court  of  Judicature,  Andhra  Pradesh  at  Hyderabad  in  Criminal  

Appeal No.578 of 2002.  The judgment and order dated 30th October,  

2001  passed  by  the  Court  of  XVIII  Metropolitan  Magistrate,  

Hyderabad in C.C.No.18 of 2000 is upheld.  

21. The appeals are allowed accordingly.

…………………………………………………………………………J.                    (SUDHANSU JYOTI MUKHOPADHAYA)

…………………………………………………………………………J.

NEW DELHI,                                 (S.A. BOBDE)    

JANUARY 28, 2015.