Representation of a Complainant

It is nowadays being felt that intermittent court proceedings are a drain on the valuable time of the officers of the Company who attend criminal proceedings in Courts and therefore the question to be explored is of the possibility of either the Officer further delegating his powers to a Third Person for representation before a Court or the Company directly appointing a Third Person as its Power of Attorney.

 

In light of the above circumstances, we have examined the provisions of law applicable and the judicial pronouncements thereon.

 

 

Section 138 of the NI Act deals with dishonour of cheque for insufficiency, etc., of funds in the accounts and states as under: -

 

 

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to two year, or with fine which may extend to twice the amount of the cheque, or with both:

 

 

         Provided that nothing contained in this section shall apply unless-

 

 

 (a)      The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.

 

 

 (b)      The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and

 

 

 (c)      The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

 

 

 Explanation: For the purpose of this section, debt or other liability means a legally enforceable debt or other liability.

 

 

 

Section 142 of the NI Act deals with cognizance of offences and states as under : -

 

 

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

 

 

(b)      Such complaint is made within one month of the date on which the cause of action arises under clause (C) of the proviso to section 138:

 

 

 Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.

 

 

 (c)      No court inferior to that of a Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.

 

 

 Section 2 of the Powers of Attorney, 1882 states as under: -

 

 

 The donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor there of. This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force.

 

 

 Sections 200 to 203 of the Code of Criminal Procedure, 1973 read as under: -

 

 

 200.   Examination of complainant.-

 

 

 A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

 

 

 Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

 

 

 (a)      if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complainant; or

 

 

 (b)      if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:

 

 

 Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

 

 

 

 201.   Procedure by Magistrate not competent to take cognizance of the case.-

 

 

 If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall, -

 

 

 (a)      if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;

 

 

 (b)      if the complaint is not in writing, direct the complainant to the proper Court.

 

 

 

202.   Postponement of issue of process.-

 

 

 (1)      Any Magistrate , on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

 

 

 Provided that no such direction for investigation shall be made, -

 

 

 (a)      where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

 

 

 (b)      where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

 

 

 (2)      In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

 

 

 Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

 

 

 (3)      If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.

 

 

203.   Dismissal of complaint.-

 

 

 If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

 

 

 302. Permission to conduct prosecution :-

 

 

 (1)      Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of inspector, but no person, other than the Advocate-General, or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:

 

 

 Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

 

 

 (2)      Any person conducting the prosecution may do so personally or by a pleader.

 

 

 

Section 183 of the Indian Contract Act, 1872 reads as under: -

 

 

“Any person who is of the age of majority according to the law to which he is subject, and who is of sound mind, may employ an agent.”

 

 

 

The Hon’ble Supreme Court, in the matter of M.M.T.C. Ltd. and Anr. -versus- Medchl Chemicals & Pharma (P) Ltd. and Anr. (2002) 1 SCC 234 has dealt with a matter where the complaint was signed and presented by a person, who was neither an authorised agent nor a person empowered under the articles of Association or by any resolution of the Board to do so. The complaint was held to be not maintainable by the High Court and the taking of cognizance of such a complaint was found legally not acceptable.  However, though initially there was no authority, still the Appellant had at a later date rectified that defect. At a subsequent stage the Appellant had sent a person who was competent to represent the The Appellant. The Supreme Court held that the complaints could not have been quashed on this ground.  While doing so, the Hon’ble Supreme Court followed the judgments in the case of Vishwa Mitter of Vijay Bharat Cigarette Stores, Dalhousie Road, Pathankot -versus- O.P. Poddar and Ors. (1983) 4 SCC 701 and Associated Cement Co. Ltd. – versus- Keshvanand (1998) 1 SCC 687.

 

 

In Vishwa Mitter of Vijay Bharat Cigarette Stores, Dalhousie Road, Pathankot -versus- O.P. Poddar and Ors. (1983) 4 SCC 701 it has been held by the Supreme Court 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. It has been held that no court can decline 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 take cognizance of the offence 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.

 

 

In Associated Cement Co. Ltd. – versus- Keshvanand (1998) 1 SCC 687, it has been held by the Hon’ble Supreme Court that the complainant has to be a corporeal person who is capable of making a physical appearance in the court.  It has been held that if a complaint is made in the name of a incorporeal person (like a company or corporation), it is necessary that a natural person represents such juristic person in the court. It is held that the Court looks upon the natural person to be complainant for all practical purposes. It is held that when the complainant is a body corporate, it is the de jure complainant, and it must necessarily associate a human being as de facto complaint to represent the former in court proceedings. It has further been held that no Magistrate shall insist that the particular person whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. It has been held that there may be occasions when different persons can represent the company. It has been held that it is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the court.

 

 

The issue of the manner of representation of a Company Complainant before the Court in terms of Sections 200 to 203 of the Code of Criminal Procedure, 1973 is yet to be set out by the Hon’ble Supreme Court.  However, the Hon’ble Madras High Court has, in the matter of Y. Vijayalakshmi@ Rambha -versus- Manickam Narayanan, Proprietor, Seventh Channel Communications rep. by its Power of Attorney Agent 2005 CriLJ 3572 attempted to set down a procedure when a General Power of Attorney is representing a Complainant. It has been held by the Hon’ble Madras High Court as under: -

 

 

“Thus, from the above discussion it is made clear that complaint can be presented by GPA on behalf of the payee, provided,

 

 

 (i)       the complaint shall be signed by the payee himself;

 

 

 (ii)      there shall be also an affidavit of the complainant in proof of his execution of GPA; added to the production of the said Power of Attorney document;

 

 

 (iii)     sworn statement of GPA can be recorded on the date of presentation of the complaint;

 

 

 (iv)            sworn statement of payee (complainant) shall have to be taken in a future date on his appearance in Court; the Magistrate shall thoroughly examine the statements of GPA holder as well as the original complaint and documents produced before him and exercise his discretion vested under Sections 202 and 203 of Cr.P.C.

 

 

 (v)               The above guidelines are not exhaustive and in other circumstances the Magistrate shall exercise his discretion judiciously and in confirmity of other provisions of law applicable.”