IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.04.2010
CORAM:
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Crl.O.P. No. 24918 of 2007
and
M.P. Nos. 1 and 2 of 2007
1.M/S. Pearlpet packaging (P) Ltd.
Rep. by its Managing Director
B.M. Ramesh Kumar, No.4/80-B
4th cross street, Ist North Main road
Kapaleeswarar Nagar
Neelangarai, Chennai-41.
2.B.M.Ramesh Kumar
Managing Director
Pearlpet Packaging (P) Ltd.
3.Radhika Ramesh
Director, M/S. Pearlpet Packaging (P) Ltd. .. Petitioners
-vs-
M/S. Saraswathi Udyog India Ltd.
Represented by its Managing Director
Mr. E. Mohan, No.33/161, Thirunagar Colony, Erode
Represented by his power Agent and
Manager Mr. R. Krishnamoorthy. .. Respondent
Prayer: Criminal Original Petition is filed under Section 482 Cr.P.C. to call for the records in connection with C.C. No. 551 of 2006, on the file of the Judicial Magistrate No.I, Erode and quash the same.
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For Petitioners : Mr. M. Balachandar
For Respondent : Mr. M.R. Thangavel
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O R D E R
The petitioners, who are facing prosecution for offence under Section 138 of Negotiable Instruments Act, in C.C. No. 551 of 2006, on the file of the learned Judicial Magistrate No.I, Erode, seek quash of the proceedings against them.
2. The first petitioner is a company, while the second and third petitioners respectively are the Managing Director and Director thereof. The ground canvassed by the learned counsel for the petitioners is that the complaint has been filed by a person representing himself to be the power agent and manager of the complainant company. The Power of Attorney had not been filed with the complaint and there was nothing to show that the alleged Special Power of Attorney was authorised by a resolution of the Board of Directors of the complainant company.
3. In response, the learned counsel for the respondent cites Judgment of this Hon’ble Court in 2006(4) CTC 333 (K.Gopalakrishnan v. Karunakaran, rep. By the Power of Attorney Holder, Dhandapani). In such case, the Hon’ble Division Bench was dealing with the following reference:
“4.1. Whether the complaint shall be signed by the Power of Attorney holder on behalf of the complainant?
2.Whether the production of affidavit of the complainant in proof of execution of the Power of Attorney in his favour is necessary?
3.Whether the sworn statement of the complainant is also required to be recorded on a future date on his appearance in the Court to enable the Court to exercise its discretion under Sections 202 and 203 of the Code of Criminal Procedure?”
This Court had touched upon the decision of the Hon’ble Apex Court in 2002 Cri. L.J. 266 (M/S. M.M.T.C. limited v. M/S. Medchl Chemicals Pharma (P) Ltd.) as follows:
“13…. The Hon’ble Supreme Court has held that, merely because complaint is signed and presented by a person, who is neither as authorised agent, nor a person empowered under the Articles of Association or by any resolution of the board to do so is no ground to quash the complaint. The Court further held that even presuming that initially there was no authority still the company can, at any stage rectify the defect. At a subsequent stage the company can depute the person who is competent to represent the company. It is therefore clear that even though the General Power of Attorney at initial stage failed to produce the deed of Power of Attorney or the affidavit of the complainant in proof of execution of Power of Attorney, the same can be rectified by producing the same at a later stage of the proceedings as and when the validity of the Power of Attorney is questioned by the accused and the Court could then be called upon to decide the genuineness or the validity of the Power of Attorney.”
Eventually, the Hon’ble Division Bench as held as follows:
17.. .. (i) With regard to the First Issue, the complaint even if not signed by the Power of Attorney on behalf of the Complainant but signed in his own name, is maintainable and not bad in law because it is more procedural than substantive;
(ii) Regarding the Second Issue, though the General Power of Attorney at initial stage fails to produce the deed of Power of Attorney or the affidavit of the complainant in proof of execution of Power of Attorney, the same can be rectified by producing the same at a subsequent stage of the proceedings as and when the validity of the Power of Attorney is questioned by the accused and the Court could then be called upon to decide the genuineness or the validity of the Power of Attorney; and
(iii) In respect of Third Issue, it is not required to record the sworn affidavit of the complainant also on a future date to enable the Court to exercise its discretion.”
It is clear that the contentions raised on behalf of the petitioners are not such as would find favour with this Court. In these circumstances, this Court would not exercise its inherent power under Section 482 of Cr.P.C.
4. Accordingly, the criminal original petition shall stand dismissed and the connected miscellaneous petitions are closed.
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To
The Judicial Magistrate No.I
Erode