S SANKARAN Vs. EMKAY AROMATICS LIMITED

JUDGEMENT

(1.) THE instant criminal original petition is to call for the records in C. C. No. 6541 of 1997 on the file of the 17th Metropolitan magistrate, Saidapet , Madras, and quash the private complaint therein. Though several points have been urged in the instant criminal original petition, learned counsel for the petitioner would stress the points which have been raised as additional grounds by filing Crl. M. P. No. 8444 of 2000. THE grounds urged are as follows :(i ) Calendar Case No. 6541 of 1997 which was taken on the file by the learned 17th Metropolitan Magistrate, Saidapet , Chennai, is illegal inasmuch as the complaint has been filed by the respondent's managing director through his power of attorney agent, nevertheless the respondent-company has miserably failed to file the company resolution passed by the board of directors, if any, along with the aforesaid calendar Case No. 6541 of 1997 in the year 1997. (ii) THE above Calendar Case No. 6541 of 1997 which has been represented by the managing director's power of attorney agent who has not at all been authorised by the company. Besides the managing director was also not authorised by any board resolution to initiate private complaint against the petitioner under section 138 of the Negotiable Instruments Act, 1881. In elaboration of these points, learned counsel for the petitioner would contend that the very cognizance that has been taken by the trial court is invalid, since the complaint has been filed by the power of attorney representing the managing director of the company, even without a resolution of the board. Learned counsel would also cite the decision reported in M. Lakshmi v. Shanmuga Priya Textiles (P.) Ltd. in which it has been held that without a resolution of the board and in the absence of proof, the person mentioned as the complainant has no right to maintain the complaint and, therefore, the lower court was not justified in taking cognizance of the complaint. I have carefully considered the submissions made by learned counsel for the petitioner and also the decision in M. Lakshmi v. Shanmuga Priya Textiles (P.) Ltd. 2001 107 Comp Cas , 121 (Mad ). According to learned counsel for the petitioner, the complaint has been filed by the power of attorney on being delegated by the managing director of the company and as such, in the absence of proof with regard to the resolution of the board authorising the managing director either to file the complaint or to give power of attorney to the present complainant, the complaint cannot be filed by the present complainant, by name, Mohanarangam , even though he is the manager-administration of the company. This contention, in my view, does not merit acceptance, since the facts of the case referred to above would not be applicable to the present case at all. On the other hand, the judgment rendered in M. Lakshmi v. Shanmuga Priya Textiles (P.) Ltd. has referred to a judgment reported in Shakthi Concrete Industries Ltd. v. Valuable Steels (India) Ltd. 1998 1 L. W. ( Crl.) 343; wherein this court held that the complainant-company can approach the court through some person who is connected with the affairs of the company and he can file the complaint even without any authorisation. That decision was distinguished by the learned single judge of this court while rendering judgment in M. Lakshmi v. Shanmuga Priya Textiles (P.) Ltd. holding that the complainant representing in that case is not connected with the affairs of the company and, therefore, the resolution of the board and the authorisation are necessary to empower the magistrate to take cognizance. In the instant case, as admitted by learned counsel for the petitioner and as mentioned in the complaint, even though the company's representative Mohanarangam is mentioned in the complaint as power of attorney agent of the managing director of the company, he is the manager-administration of the company. In this connection, the observation of this court in Shakthi Concrete industries Ltd. v. Valuable Steels ( India) Ltd. , is quite relevant, which is as under (page 434-35 ) : "the cause title as well as the averments made in the complaints and the sworn statement would disclose that the complaints had been filed by the company represented by the director and as such, the company alone approaches the court as payee as provided under section 142 of the negotiable Instruments Act. In the instant case, as per the cause title and the averments, the complainant-company has approached the court through some human agency, namely, a director of the company, in preferring the complaints, as the company has no soul, mind, body and limbs. If the company approaches the court through some other person, who is not connected with the affairs of the company, then necessarily it has to authorise that person to file the complaint on its behalf. THErefore, in this case, the company being the complainant through its director is competent to file the complaints even without any authorisation. THE complaints are valid and the same are in accordance with law. " So, in the light of the above observation, any man, who is a director or a manager or any person connected with the affairs of the company, on being aggrieved in respect of the offence under the Negotiable instruments Act, can approach the court even without any authorisatio n to file the complaint on behalf of the company. It is true that as pointed out by learned counsel for the petitioner, the complaint has been presented by the manager-administration in the capacity of the power of attorney agent. It is also equally true that the managing director of the company has not filed the complaint directly, but delegated his power to file the complaint before the court of law. But, in the instant case, the question whether the power of attorney is necessary to file the complaint, especially when the representative of the company is the manager-administration of the company, has to be decided only by the trial court. Furthermore , even assuming that the manager-administration has filed the complaint as a representative of the managing director of the company, whether the resolution of the board had authorised the managing director to delegate his power to power of attorney, is also to be considered by the trial court only during the course of the trial. But, in my view, in the light of the observation made by this court in Shakthi Concrete Industries Ltd. v. Valuable Steels ( India)Ltd. the complaint is maintainable, though the complaint has been filed with or without authorisation of the company, since the present representative is so closely connected with the affairs of the company. However, it is for the trial court to consider the same in the light of the materials produced before the court at the time of the trial. THErefore, the petitioner is at liberty to raise all the points before the trial court. THE criminal original petition is dismissed. Consequently, Crl. M. P. No. 7648 of 1999 and Crl. M. P. No. 8445 of 2000 are also dismissed. .