M/S Trl Krosaki Refractories Ltd. vs M/S Sms Asia Private Limited

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2022 (Arising out of SLP (Crl.) No.3113 of 2018)

M/s TRL Krosaki Refractories Ltd. .… Appellant(s)

Versus

M/s SMS Asia Private Limited & Anr. …. Respondent(s)

JUDGMENT

A.S. Bopanna,J.

1. Leave granted.

2. The appellant is assailing the judgment dated

14.12.2017 passed by the High Court of Orissa at Cuttack in

CRLMC No.1210 of 2017. Through the said judgment, the High

Court while disposing of the petition has quashed the order

dated 05.11.2015 passed by the learned SDJM, Jharsuguda by

which cognizance was taken and summons was issued in Signature Not Verified Digitally signed by Rajni Mukhi Date: 2022.02.22 17:15:19 IST Reason:

I.C.C. Case No.422 of 2015. The appellant who is the

1 complainant in I.C.C. Case No.422 of 2015 is therefore before

this Court, claiming to be aggrieved by the said judgment.

3. The brief facts are that the respondent herein had

issued seven cheques dated 13.03.2015, in all amounting to

Rs.1,10,00,000/­ (Rupees one crore ten lakhs) 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, (‘SDJM’ for short) Panposh,

Uditnagar Rourkela under Section 138 and 142 of Negotiable

Instruments Act, 1881 (for short ‘N.I. Act’). 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

2 complaint and directed summons to the respondent­accused,

vide order dated 05.11.2015.

4. The respondent herein however filed a petition in

CRLMC No.1210 of 2017 under Section 482 of the Criminal

Procedure Code (for short ‘Cr.P.C.) 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. In

that regard, it was contended that Mr. Subhasis Kumar Das,

General Manager (Accounting) who had filed the complaint

representing the complainant company, neither had knowledge

about the alleged transaction, nor had he witnessed the same.

In that light, the respondent had contended that the order

taking cognizance and the summons issued to them, is liable to

be quashed. The High Court, accepting the said contention and

placing reliance on the judgment of this Court in A.C.

Narayanan vs. State of Maharashtra & Anr. (2014) 11 SCC

790 has held that there is no mention in the complaint or

affidavit as to when and in what manner the company had 3 authorized its General Manager (Accounting) to represent the

company to file the complaint. It is further held that there is no

averment in the complaint as to whether the General Manager

(Accounting) had knowledge about the transaction or he was a

witness to the transaction. It was also held, neither any

resolution of the Board of Directors of the complainant

company nor any authorisation of the company in favour of the

person representing it in the complaint was filed for perusal of

the Magistrate. Only an authorisation letter issued by the

Managing Director of the complainant company in favour of the

General Manager (Accounting) was produced and the said

authorisation does not indicate whether the Board of Directors

had authorised the Managing Director to sub­delegate his

powers to the General Manager (Accounting) to file the

complaint on behalf of the company.

5. Mr. Ashok K. Parija, learned senior counsel appearing

on behalf of the appellant while assailing the judgment passed

by the High Court, would contend that the High Court has

utterly misconstrued the principle enunciated in A.C.

Narayanan (supra) to non­suit the appellant. It is contended

that in the said decision, while considering the nature of the 4 complaint filed based on the power of attorney executed by one

individual in favour of another individual to conduct the case,

the requirement therein has been stated. Even in that context

the High Court has not properly appreciated the facts involved

in the instant case since the complaint was as per the

observations made in A.C. Narayanan (supra). It is contended

that the order passed by the learned SDJM dated 05.11.2015

taking cognizance would indicate that the learned Magistrate

having perused the complaint and the entire record, was

satisfied that there is sufficient material for issuance of

summons. In that background, the list of documents and the

documents are referred to. The agreement dated 18.07.2014,

entered into between the appellant and respondent would

disclose that Mr. Subhasis Kumar Das, General Manager

(Accounting) who had represented the company in the

complaint, was a witness to the said agreement. He had also

signed the reconciliation statement and has despatched the

notice to the respondent when the cheques were dishonoured.

In that view, the company was represented by a competent

person who had knowledge of the transaction. The verifying

affidavit enclosed with the complaint also specified that he had

5 knowledge and that the complaint was based on the relevant

documents. In addition, the said Mr. Subhasis Kumar Das,

General Manager (Accounting) in the affidavit filed as his sworn

statement, had explicitly stated that he is the authorized

representative of the complainant company and has filed the

complaint against the accused persons. Learned senior counsel

would also point out that in addition to the fact that he was a

Senior Managerial Officer of the appellant company, Mr.

Subhasis Kumar Das was also authorized by the Managing

Director on 23.05.2015, to initiate the legal proceedings. The

Managing Director on the other hand, was authorized by the

Chairman based on the approval of the Board of Directors. In

that view, it is contended that the complaint was filed in

accordance with law and the learned Magistrate having applied

his mind, had taken cognizance which was quashed by the

High Court without appropriately applying its mind.

6. Mr. Santosh Kumar, learned counsel for the respondent

would however, seek to sustain the judgment passed by the

High Court. It is contended that the High Court having noted

the judgment in A.C. Narayanan (supra) and also the

judgments of the Orissa High Court had arrived at the

6 conclusion that the complaint filed did not satisfy the

requirement of Section 142 of N.I. Act as the complaint was not

filed by a person who was authorized by the company. It is

further contended that in A.C. Narayanan (supra) this Court

has held that there should be explicit averment to the effect

that the person filing the complaint is authorized by the

complainant and has knowledge of the transaction in question

so as to maintain the complaint. It is contended that since the

High Court has arrived at its conclusion by relying on a

decision rendered by this Court, such a decision would not call

for interference in this appeal.

7. Having noted the sequence of events and the rival

contentions put forth by the learned counsel for the parties,

the solitary issue for consideration herein is as to whether the

complaint filed by the appellant herein under Section 138 of

N.I. Act is in accordance with the requirement under Section

142 of the N.I. Act. The relevant provision reads as hereunder:

­ “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,

7 as the case may be, the holder in due course of the cheque;

(b) xxxxxxxxxx

(c) xxxxxxxxxx”

8. In that background, a perusal of the complaint

(Annexure P­14) would disclose that the complainant named

therein is M/s. TRL Krosaki Refractories Limited through its

General Manager (Accounting) Subhasis Kumar Das. A perusal

of the cheques (Annexures P­3 to P­9) which are the subject

matter of the said complaint under Section 138 of NI Act would

disclose that the “payee” named in the said cheques is M/s.

TRL Krosaki Refractories Limited. If that be the position, the

requirement as contemplated under Section 142 (1) (a) of NI

Act that the complaint ought to be in writing and that it should

be filed by the payee or the holder in due course, stands

satisfied. The issue raised is that the complaint filed by Mr.

Subhasis Kumar Das, General Manager (Accounting) on behalf

of the company is not competent for want of authorisation and

that there is no averment with regard to his knowledge about

the transaction. On this aspect, strong reliance is placed by the

learned counsel for the respondents on A.C. Narayanan

(supra). Further, the judgment passed by the High Court is

8 also entirely based on the guidelines laid down in the said

decision.

9.To place the matter in perspective, it would be necessary for

us to take note of the circumstances under which the

consideration arose in A.C. Narayanan (supra). In that regard,

it is noticed that this Court while considering the scope of

Section 142 (1)(a) of N.I. Act in the case of M/s. M.M.T.C. Ltd.

vs. Medchi Chemicals and Pharma (P} Ltd., (2002) 1 SCC

234, had taken note of an earlier decision of this Court in

Vishwa Mitter vs. O.P. Poddar, (1983) 4 SCC 701 wherein it

was held 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. It was further held in

Vishwa Mitter (supra) that if any special statute prescribes

offences and makes any special provision for taking cognizance

of such offences under the statute, then the complaint

requesting the Magistrate to take cognizance of the offence

must satisfy the eligibility criterion prescribed by such statute.

In that circumstance, it was held that the only eligibility

criteria prescribed by Section 142 of N.I. Act is that the

9 complainant must be by the payee or the holder in due course. However, in a subsequent decision in Janaki Vashdeo

Bhojwani & Anr. vs. Indusind Bank Ltd. & Ors. (2005) 2

SCC 217, while considering the right of a power of attorney

holder to act on behalf of the principal in a civil proceeding, the

provision contained in Order III Rule 1 and 2 of CPC was kept

in view and it was held that if the power of attorney holder has

rendered some acts in pursuance of the 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 cross­examined. The said two decisions which

were rendered by Division Benches were assumed to be in

conflict with each other by another Division Bench while

considering A.C. Narayanan (supra) and therefore it desired

clarification.

10. In that view, the matter in A.C. Narayanan (supra) was

referred to a Bench of three Hon’ble Judges. The said Bench

after holding that the said two judgments of this Court are not

10 in conflict with each other has considered the scope and

requirement of Section 142 (1)(a) of N.I. Act and formulated the

questions for consideration as contained in para 21 of the

judgment which read as hereunder: ­

“21. In terms of the reference order, the following questions have to be decided by this Bench:

21.1. Whether a power­of­attorney holder can sign and file a complaint petition on behalf of the complainant? /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?

21.2. Whether a power­of­attorney holder can be verified on oath under Section 200 of the Code?

21.3. Whether specific averments as to the knowledge of the power­of­attorney holder in the impugned transaction must be explicitly asserted in the complaint?

21.4. If the power­of­attorney holder fails to assert explicitly his knowledge in the complaint then can the power­of­attorney holder verify the complaint on oath on such presumption of knowledge?

21.5. Whether the proceedings contemplated under Section 200 of the Code can be dispensed with in the light of Section 145 of the NI Act which was introduced by an amendment in the year 2002?”

The consideration made in paras 29 to 30 would be relevant to be

noted, which read as hereunder: ­

11 “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.

30. In the light of the discussion, we are of the view that the power­of­attorney 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 NI Act. An exception to the above is when the power­of­attorney 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

12 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.”

The answer to the question raised for consideration is contained in para 33 which read as hereunder: ­

33. While holding that there is no serious conflict between the decisions in M.M.T.C. and Vashdeo Bhojwani, we clarify the position and answer the questions in the following manner:

33.1. Filing of complaint petition under Section 138 of the NI Act through power of attorney is perfectly legal and competent.

33.2. The power­of­attorney holder can depose and verify on oath before the court in order to prove the contents of the complaint. However, the power­ of­attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.

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

33.4. In the light of Section 145 of the NI 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 NI Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before

13 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.

33.5. 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.”

(Emphasis supplied)

11. A cumulative perusal of the facts of the instant case

would indicate that the requirement as indicated in A.C.

Narayanan, (supra) are in fact satisfied. Firstly, as noted

above, the complaint was filed in the name of the company i.e.,

“the payee”, through Mr. Subhasis Kumar Das, General

Manager (Accounting). The authorisation dated 23.05.2015 by

the Managing Director in his favour (Annexure P­17) discloses

that Mr. Priyabrata Panda, Managing Director of the appellant

company had authorised Mr. Subhasis Kumar Das, General

Manager (Accounting) to institute criminal proceedings,

including proceedings under the provisions of the N.I. Act and

civil proceedings on behalf of the company against M/s. SMS

Asia Private Limited (respondent), to represent the company

and take all necessary actions in the matter in learned SDJM’s

14 Court. The specimen signature of Mr. Subhasis Kumar Das has

also been attested by the Managing Director. The Managing

Director apart from himself being the key managerial personnel

of the appellant company, has also been delegated the power

by the Board of Directors through the document dated

06.04.1998 (Annexure P­16). Through the said document the

Managing Director has been delegated, in general, all powers

necessary for the management and operation of the company

and it has been specified among others, to exercise the power

relating to important issues affecting the company’s land and

property. Through the said document, the Managing Director is

also empowered to delegate where necessary and to the extent

required, any of the powers delegated to him, to his

subordinate officers. The above noted documents would

disclose that the complaint under Section 138 NI Act was filed

on behalf of the “payee” company with due authorisation.

12. The next aspect on which the High Court has interfered

is on accepting the contention that there is no averment in the

complaint as to whether the General Manager (Accounting) had

any knowledge about the transaction or he was a witness to

the transaction. On the said aspect it is noted that the

15 transaction between the parties is based on the agreement

dated 18.07.2014 (Annexure P­1). The said document depicts,

below the signature of the executives representing the

appellant and the respondent company, a witness each from

either side have appended their signatures. The witness on

behalf of the appellant company is none other than Mr.

Subhasis Kumar Das who was at that point in time, designated

as General Manager (Commercial). Further, the document for

reconciliation of account spanning the period from 01.04.2011

to 30.09.2014, as carried out on 28.10.2014, depicts that the

same was attested by the representatives of both the

companies. The appellant company is represented by Mr.

Subhasis Kumar Das. That apart, when the cheques were

dishonoured, it was Mr. Subhasis Kumar Das, General

Manager (Accounting) who had issued the notices (Annexure P­

11, 12­13) on behalf of the appellant company, to the

respondent company. The said documents would indicate that

the person who had knowledge of the transaction and was

witness to it, has been authorized and has instituted the

complaint on behalf of the company.

16

13. Apart from the factual aspects as stated in the

complaint, relating to the transaction, the complaint as also

the affidavit supporting the complaint contain averments

regarding authorization in favour of and knowledge on the part

of Mr. Subhasis Kumar Das, which read as hereunder: ­

“That, the complainant Company incorporated under the companies Act 1956 and having registered office At/PO/PS­Belpahar, Dist.­Jharsuguda, (Odisha) represent through its General Manager (Accounting), Shri Subhasis Kumar Das, aged about 47 years, S/O Shri Gopal Chandra Das and also authorize by the Company to file this complaint.”

The verifying affidavit reads as hereunder:­

“I, Sri. Subhasis Kumar Das, aged about 47 years, S/o. Gopal Chandra Das General Manager (Accounting) of M/s. TRL Krosaki Refractories Limited, At / PO /PS­ Belpahar, Dist.­Jharsuguda (Odhisa), do hereby solemnly affirm and state as follows:­

1. That, I am the General Manager (Accounting) of M/s. TRL Krosaki Refractories Limited, At / PO / PS­ Belpahar, Dist.­Jharsuguda (Odisha) and competent to file this complaint petition.

2. That, facts stated above in this complaint petition from Para : 1 to 13 are true to the best of my knowledge, belief and basing on the relevant documents.”

In addition, the affidavit filed in lieu of the oral sworn

statement before the learned SDJM to enable cognizance to be

taken contains the averment as follows: ­ 17 “That I am the authorized representative of the complainant Company incorporated under the companies Act 1956 and having registered office At/PO/PS­ Belpahar, Dist. Jharsuguda (Odisha) has filed this complaint petition against the accused person.” (Emphasis supplied)

14. A meaningful reading of the above would indicate that

the company having authorized the General Manager

(Accounting) and the General Manager (Accounting) having

personal knowledge had in fact been clearly averred. What can

be treated as an explicit averment, cannot be put in a

straitjacket but will have to be gathered from the circumstance

and the manner in which it has been averred and conveyed,

based on the facts of each case. The manner in which a

complaint is drafted may vary from case to case and would also

depend on the skills of the person drafting the same which by

itself, cannot defeat a substantive right. However, what is

necessary to be taken note of is as to whether the contents as

available in the pleading would convey the meaning to the

effect that the person who has filed the complaint, is stated to

be authorized and claims to have knowledge of the same. In

addition, the supporting documents which were available on

the record by themselves demonstrate the fact that an

18 authorized person, being a witness to the transaction and

having knowledge of the case had instituted the complaint on

behalf of the “payee” company and therefore, the requirement

of Section 142 of N.I. Act was satisfied. In Vinita S. Rao vs.

Essen Corporate Services (P) Ltd. (2015) 1 SCC 527, to which

one of us (Hon’ble CJI) was a member of the Bench has

accepted the pleading of such a nature to indicate the power to

prosecute the complaint and knowledge of the transaction as

sufficient to maintain the complaint.

15. Despite our conclusion that the documents available on

record would on facts satisfy the requirement relating to

delegation of power and also knowledge of the transaction by

the person representing the Company in the instant case, it is

also necessary for us to keep in perspective that though the

case in A.C. Narayanan (supra) has taken the center stage of

consideration, the facts involved therein were in the

background of the complainant being an individual and the

complaint filed was based on the power of attorney issued by

the “payee” who was also an individual. In such an event, the

manner in which the power was being exercised was to be

19 explicitly stated so as to establish the right of the person

prosecuting the complaint, to represent the payee i.e., the

complainant. The position that would emerge when the

complainant is a company or a corporate entity will have to be

viewed from a different standpoint. In this regard in Samrat

Shipping Co. Pvt. Ltd. Vs. Dolly George (2002) 9 SCC 455,

while disapproving the manner in which cognizance was

refused to be taken and the complaint had been dismissed by

the learned Magistrate at the threshold, this Court has held as

hereunder:

“3. Having heard both sides we find it difficult to support the orders challenged before us. A company can file a complaint only through human agency. The person who presented the complaint on behalf of the Company claimed that he is the authorized representative of the company. Prima­facie, the trial court should have accepted it at the time when a complaint was presented. If it is a matter of evidence when the accused disputed the authority of the said individual to present the complaint, opportunity should have been given to the complainant to prove the same, but that opportunity need be given only when the trial commences. The dismissal of the complaint at the threshold on the premise that the individual has not produced certified copy of the resolution appears to be too hasty an action. We, therefore, set aside the impugned orders and direct the trial court to proceed with the trial and dispose of it in accordance with law. Parties are directed to appear before the trial court on 31.1.2000.” (Emphasis supplied)

20

16. Further, in National Small Industries Corporation

Ltd. Vs. State (NCT of Delhi) and Ors. (2009) 1 SCC 407, this

Court though was essentially considering the issue relating to

the exemption available against examining a public servant

keeping in view the scope under Section 200 (a) of Cr.PC, has

exhaustively considered the validity of a complaint under

Section 138 of N.I. Act and the satisfaction of the requirement

under Section 142 thereof. In the said context this Court has

held as hereunder: ­

“14. The term “complainant” is not defined under the Code. Section 142 of the NI Act requires a complaint under Section 138 of that Act to be made by the payee (or by the holder in due course). It is thus evident that in a complaint relating to dishonour of a cheque (which has not been endorsed by the payee in favour of anyone), it is the payee alone who can be the complainant. The NI Act only provides that dishonour of a cheque would be an offence and the manner of taking cognizance of offences punishable under Section 138 of that Act. However, the procedure relating to initiation of proceedings, trial and disposal of such complaints, is governed by the Code. Section 200 of the Code requires that the Magistrate, on taking cognizance of an offence on complaint, shall examine upon oath the complainant and the witnesses present and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses. The requirement of Section 142 of the NI Act that the payee should be the complainant, is met if the complaint is in the name of the payee. If the payee is a company, necessarily the complaint should be filed in the name of the company, if a company is the complainant. A company can be represented by an employee or even by a non­employee authorized

21 and empowered to represent the company either by a resolution or by a power of attorney.

16. Section 142 only requires that the complaint should be in the name of the payee. Where the complainant is a company, who will represent the company and how the company will be represented in such proceedings, is not governed by the Code but by the relevant law relating to companies. Section 200 of the Code mandatorily requires an examination of the complainant; and where the complainant is an incorporeal body, evidently only an employee or representative can be examined on its behalf, As a result, the company becomes a de jure complainant and its employee or other representative, representing it in the criminal proceedings, becomes the de facto complainant. Thus in every complaint, where the complainant is an incorporeal body, there is a complainant – de jure, and a complainant­de facto. Clause (a) of the proviso to Section 200 provides that where the complainant is a public servant, it will not be necessary to examine the complainant and his witnesses. Where the complainant is an incorporeal body represented by one of its employees, the employee who is a public servant is the de facto complainant and in signing and presenting the complaint, he acts in the discharge of his official duties. Therefore, it follows that in such cases, the exemption under clause (a) of the first proviso to Section 200 of the Code will be available.

19. Resultantly, when in a complaint in regard to dishonour of a cheque issued in favor of a company or corporation, for the purpose of Section 142 of the NI Act, the company will be the complainant, and for purposes of Section 200 of the Code, its employee who represents the company or corporation, will be the de facto complainant. In such a complaint, the de jure complainant, namely, the company or corporation will remain the same but the de facto complainant (employee) representing such de jure complainant can change, from time to time. And if the de facto complainant is a public servant, the benefit of exemption under clause

22

(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)

17. In that view, 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 (supra) 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

23 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.

(supra), 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.

24

18. In that view of the matter, we are of the opinion that the

High Court was not justified in entertaining the petition filed

under Section 482 of Cr.PC and quashing the order dated

05.11.2015, taking cognizance of the complaint filed by the

appellant.

Accordingly, we pass the following order;

(i) The judgment dated 14.12.2017 passed in CRL.

MC. No. 1210 of 2017 by the High Court of Orissa,

Cuttack is set aside.

(ii) The complaint in I.C.C Case No. 422 of 2015 is

restored to the file of SDJM, Jharsuguda with a

direction to list the case on 15.03.2022 as the first

date for appearance of the parties.

(iii) The respondent who has appeared herein and is

represented by a counsel shall appear on the said

date before the learned Magistrate in continuation

of the proceedings wherein summons had already

been issued, without expecting fresh summons to

be issued.

(iv) Keeping in view the fact that the complaint is of

the year 2015, the same shall be proceeded with

25 further expeditiously and be concluded in a period

not later than six months from the first date

indicated above.

(iv) The appeal is accordingly allowed with cost

quantified at Rs. 1,00,000/­ (Rupees one lakh

only) payable by the respondent to the appellant.

19. All pending applications, if any, shall stand disposed of.

..…………....................CJI.

(N.V. RAMANA)

…..…………....................J. (A. S. BOPANNA)

.…..………......................J. (HIMA KOHLI)

New Delhi;

February 22, 2022

26