JUDGMENT
R. L. Anand, J.
1. This is a criminal revision and has been directed against the order dated November 11, 1997, passed by the Court of the
Chief Judicial Magistrate, Chandigarh, who disposed of two applications, one filed by the complainant Modella Knitwear Ltd. and the other by M. S. Shoes East Ltd. Modella Knitwear Ltd. submitted an application before the trial court, i.e., the Court of Chief Judicial Magistrate, Chandigarh, in a complaint under Section 138 of the Negotiable Instruments Act, 1881, with a request for granting it permission to put the signatures on the complaint or in the alternative to treat the documents of the complaint duly signed attached with the application as part of the original complaint. The learned trial court dismissed the application of M. S. Shoes East Ltd. which had prayed for the dismissal of the complaint under Section 138 of the Negotiable Instruments Act.
2. Before I incorporate the main averments of the application filed by M.S. Shoes East Ltd. (petitioner), I would like to mention the brief facts leading to the filing of the criminal complaint. Modella Knitwear Ltd. filed a complaint under Section 138 of the Negotiable Instruments Act against M. S. Shoes East Ltd. and others in the Court of Chief Judicial Magistrate, Chandigarh. I need not incorporate the averments of the complaint but suffice it to say that before filing the complaint Modella Knitwear Ltd., which is a legal entity in the eyes of law, resolved through a resolution dated April 12, 1996, that Shri Ashok Goel, director, Modella Knitwear Ltd. had been authorised to file a criminal complaint against M. S. Shoes East Ltd., with regard to the dishonour of cheque for a sum of Rs. 50,97,330. Shri Ashok Goel was further authorised to deal with all the legal matters and to hand over all the required documents in the court. He was further authorised to sign and to do all needful for the proceeding of the complaint. In pursuance of that resolution, the company engaged Shri Anuj Raura, advocate of Chandigarh in order to file the complaint. The complaint was drafted and the company filed the same through Shri Ashok Goel, as is indicated in the headnote of the complaint. However, in para. No. 1 of the complaint it is stated that the complaint was being filed by the complainant-company through Shri Arun Goel, who has been appointed and authorised by passing a resolution dated April 12, 1996. The complaint further reveals that in the list of witnesses the name of Arun Goel appears as one of the witnesses. However, it is mentioned at the fag end of the complaint that the complainant Modella Knitwear Ltd. is filing the complaint through Shri Ashok Goel. The complaint is dated April 16, 1996. The power of attorney in favour of Shri Anuj Raura, advocate, is not signed by Shri Ashok Goel nor by Shri Arun Goel, though it is signed by Shri Anuj Raura, advocate, who accepted it.
3. The complaint running into nine pages, i.e., written complaint, was filed in the Court of the Chief Judicial Magistrate, Chandigarh, on April 16, 1996. The learned Chief Judicial Magistrate, Chandigarh passed the following order on that date :
“Present : Complainant in person.
Complaint presented today. The same be made over to the court of Miss Harpreet Kaur, learned Judicial Magistrate Ist Class, Chandigarh for disposal according to law. The complainant is directed to appear before that court on April 17, 1996.
Announced : 16-4-96
(Sd.) Chief Judicial Magistrate,
Chandigarh.”
4. On April 17, 1996, again the complainant-company through Shri Ashok Goel was present and his statement was recorded and preliminary evidence was closed. The interim order dated April 17, 1996, reads as follows :
“Present : Complainant in person with counsel. Received by transfer. Be registered. One CW present has been examined. Preliminary evidence closed. For consideration to come up on May 3, 1996.
(Sd.) Chief Judicial Magistrate,
Chandigarh, 17-4-96.”
5. The proceedings continued and when the statement of the accused was supposed to be recorded under Section 313 of the Criminal Procedure Code the respondent-accused (now petitioner) filed an application for the dismissal of the complaint and it was averred in the application that in the course of recording of the evidence of the complainant, it came to light that neither Shri Ashok Goel, who appeared as P.W. 3 nor anybody else duly authorised on behalf of the complainant-company had signed the vakalatnama in favour of Shri Anuj Raura, advocate, nor has the said Ashok Goel or anybody else authorised on behalf of the complainant-company, signed any complaint. According to the petitioner a specific procedure and time-frame was provided in Sections 138 to 142 of the Negotiable Instruments Act for bringing home the guilt of the accused in the event of the dishonour of the cheque. The departure/non-compliance of the procedure would lead to the dismissal of the complaint. The petitioner alleged that the complaint in writing by the payee or the holder in due course of the cheque is one of the important prerequisites in order to bring home the guilt of the accused. In the present case the complaint has not been signed by the payee or the holder in due course of the cheque and as such the requirement of Section 142(a) of the Act has not been complied with and the complaint under Section 138 of the Act is, therefore, liable to be dismissed. The unsigned complaint is no complaint in the eyes of law and thus the magistrate could not take cognizance nor could summon the petitioner as an accused. Moreover, the defence of the petitioner has been prejudiced because of the absence of any written complaint.
6. The said application was contested on the plea that no prejudice has been caused to the petitioner due to the non-signing of the complaint. It
was presented by Shri Ashok Goel, who was duly authorised by the company before the court. The complaint was entrusted to the court of Miss Harpreet Kaur, Judicial Magistrate, First Class, Chandigarh. The entire evidence of the complainant was recorded and evidence was closed in view of the statement of Shri Ashok Goel, representative of the company. All this meets the requirements of the filing of the complaint in writing. The omission to sign the complaint may be termed as mere irregularity curable under the law. According to the respondents, it is nowhere mentioned in Section 142 of the Act that the complaint must be signed. So it is a mere irregularity which could be cured under the law. The cognizance of the complaint was taken long back by the court and much of the proceedings had followed thereafter. Section 465 of the Criminal Procedure Code makes it clear that for no error, omission, or irregularity in the complaint the order, etc. shall be reversed. The order for summoning the petitioners was passed after recording evidence. Hence the said order cannot be recalled.
7. I need not incorporate the averments of the application moved by the respondent-company for allowing it to sign the complaint because the respondents have not attacked the said order.
8. As stated above, the learned Chief Judicial Magistrate allowed the application of the respondent-company and dismissed the application of the present petitioners and aggrieved by the said order M. S. Shoes East Ltd. have filed the present revision.
9. Before 1 proceed further into the matter, for the sake of appreciation of the facts and the arguments advanced by counsel for the parties, I would like to incorporate the reasons contained in para. Nos. 17 to 29 of the order passed by the learned Chief Judicial Magistrate for allowing the application of Modella Knitwear Ltd., complainant (respondent before this court), as under :
“17. I have given due consideration to the contentions raised by both the parties. There is no dispute with the proposition of law that the accused can agitate the validity of the summoning order before the court which has passed the summoning order. But for recalling the summoning order, the accused is required to depict that there was some material irregularity in the summoning order and the process against him ought not to have been issued. On that ground the magistrate can drop the proceedings. But that request must have been made at the earliest stage of the case. In the instant case, the present application for dismissal of the complaint has been filed when the case was fixed for recording the statement of the accused under Section 313 of the Criminal Procedure Code. The objection that the complaint is not signed by any one has not been taken at any earlier stage of the proceeding. The accused had even earlier agitated the matter before the High Court on certain other grounds. But
this ground has been taken for the first time by moving this application when the case was fixed for recording the statement of the accused after closing” the prosecution/complainant’s evidence. There is also no dispute with the proposition of law that the provisions of a special statute override the general law. So in the instant case, the provisions of Sections 138 to 142 of the Act will certainly override the provisions of the Criminal Procedure Code and the requirement of Sections 138 to 142 of the Act had to be strictly complied with.
18. Section 142 of the Act reads as under :
‘Cognizance of offences.–Notwithstanding anything contained in the Criminal Procedure Code, 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 ;
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.’
Thus the above section provides that no cognizance shall be taken for any offence punishable under Section 138 except upon a complaint in writing made by the payee or the holder in due course as the case may be. So, for taking cognizance of offence under Section 138 of the Act there must be a complaint in writing. In the instant case, it is not the case that the cognizance has been taken by the court without any written complaint. The only omission in the complaint is that the complainant vehemently pleaded that the signature on the complaint could not be put inadvertently and under the bona fide plea that the same had already been signed. This contention of learned counsel for the complainant finds support from certain facts on record.
19. The present complaint was filed on April 16, 1996. The interim order dated April 16, 1996, reads as under :
Present : Complainant in person.
Complaint presented today. The same be made over to the court of Miss Harpreet Kaur, learned Judicial Magistrate, First Class, Chandigarh for disposal according to law. The complainant is directed to appear before that court on April 17, 1996.
Announced : 16-4-96.
(Sd.) Chief Judicial Magistrate,
Chandigarh.”
From the above order, it is evident that the present complaint was made over to the court of Miss Harpreet Kaur, the learned Judicial Magistrate First Class, Chandigarh, for proceeding according to law for
April. 17, 1996. On April 17, 1996, again the complainant was present in the court in person with his counsel and his statement was recorded and preliminary evidence was closed. The interim order dated April 17, 1996, reads as under :
“Present : Complainant in person with counsel.
Received by transfer. Be registered. One CW present has been examined. Preliminary evidence closed. For consideration to come up on May 3, 1996.
(Sd.) Chief Judicial Magistrate,
Chandigarh, 17-4-96.”
The statement of Shri Ashok Goyal recorded in the preliminary evidence is duly signed by him. The above interim orders depict that Shri Ashok Goyal through whom the present complaint has been filed was very much present in person on the date, the complaint was presented. The complaint is signed by Shri Anuj Raura, advocate, counsel for the complainant. However, the space for signature by Shri Ashok Goyal authorised and appointed representative of the company is blank. The complainant-company had also passed the resolution dated April 12, 1996, vide which Shri Ashok Goyal, director of the company was duly authorised to file the present complaint. So there was no reason for Shri Ashok Goyal not to sign the complaint. It appears that the complaint was not signed inadvertently by the complainant though the complaint in writing was presented to the court by him personally and the learned Judicial Magistrate First Class has also taken cognizance on the basis of the written complaint. The complainant was very much present in person when the complaint was presented to this court, i.e., on April 16, 1996, as well as on the next date on April 17, 1996, when it was taken up by the learned Judicial Magistrate First Class, Chandigarh, for taking up the proceeding in the complaint.
20. No other procedural defect or breach of mandatory provisions could be pointed out by learned defence counsel except the omission of the signature of Shri Ashok Goyal, the authorised representative of the company on the complaint. So now the point to be considered is as to whether mere omission for signing” complaint by Shri Ashok Goyal is such a defect which warrants the dismissal of the complaint or permission can be granted to the complainant to sign the complaint at this stage.
21. The interest of justice is the basic principle to be considered in such circumstances. The apex court in Chitranjan v. State of West Bengal has laid down as under :
‘Requirements of procedure are generally intended to subserve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or significant importance in a criminal trial, may some times frustrate the ends of justice. Where the provisions
prescribed by the law of procedure are intended to be mandatory the Legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves ; but where the provisions made by the law of procedure are not of vital importance but are, nevertheless, intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused. This provision is made clear by Sections 535 and 537 of the Criminal Procedure Code.’
Thus, as per authoritative pronouncement of the apex court in the above-noted authority, where the non-compliance with the mandatory provisions are not of vital importance but are nevertheless intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused. In the instant case, the accused is contesting the case from the time of his appearance. The notice of accusation has been served upon the accused. Even prosecution evidence has been recorded and the complainant had closed his case and the case was fixed for recording the statement of the accused under Section 313 of the Criminal Procedure Code when this application was filed. The learned defence counsel had not been able to show as to what prejudice has been caused to the accused due to omission of the signature of the complainant Ashok Goyal on the complaint. If no prejudice has been caused to the right of accused due to this omission then the mere omission of the signature cannot be a ground to dismiss the complaint.
22. The cases relied upon by learned counsel for the accused are quite distinguishable on the facts. In the case of Roy (A. K.) v. State of Punjab, AIR 1986 SC 2160, the question for decision of the apex court was the power to initiate prosecution for the offence under the provision of the Prevention of Food Adulteration Act. The apex court had considered the legality of the delegation/sub-delegation of the powers to institute the complaint. In the case of Dr. P. K. Mohammed Rasheed v. State of Kerala , the necessary ingredients of the facts were not alleged in the complaint. Hence, the same was quashed under Section 482, Criminal Procedure Code. In the case of Kunhimuhammed v. Khadeeja (M. K.) [1998] 92 Comp Cas 610 (Ker), the complaint was beyond limitation and the condonation of delay was sought under Section 5 of the Limitation Act and the Kerala High Court held that in view of the non obstante clause in Section 142 of the Act, no condonation of delay under Section 5 of the Limitation Act can be granted.
23. In the case of Saxena (U. C.) v. Madan Mohan , the complaint was filed by an employee of the complainant who was held not competent to file the complaint, as he was not the payee or the holder of the cheque in due course. In the case of Rakesh Nemkumar Porwal v. Narayan Dhondu
Joglekar [1993] 78 Comp Cas 822 (Bom), the question for determination was the validity of the requirement of 15 days’ notice before institution of the complaint. In that case the complaint was filed before the expiry of 15 days period and the complaint was held to be premature. In the case of Ashok Verma v. Ritesh Agro Pvt. Ltd. [1994] 1 Recent CR 562 also the complaint was premature. It was filed before the expiry of 15 days. In the case of Koya Moideen v. Hariharan (G.) [1996] 86 Comp Cas 399 (Ker), the complainant was not found to be the payee or the holder in due course.
24. The learned defence counsel had made such strength on the case Rani Abhyogeshwari v. Kishori Mohan Banerjee to contend that the complaint which is not signed should not have been entertained. In that case the matter was taken up by the Calcutta High Court on a reference made by the learned magistrate. The matter was referred to the High Court on the following points :
‘Whether the Rani can institute the case of defamation through her agent Bhuban Mohan Chatterjee and whether by doing so the requirements under Section 198, Criminal Procedure Code have been met.’
In that case the complaint for defamation was lodged by one Bhuban Mohan Chatterjee on behalf of the Rani and there was no power of attorney on record authorising the institution of that complaint by Shri Bhuban Mohan Chatterjee. So the main question for consideration before the Calcutta Hig’h Court in that case was also the authority of Shri Bhuban Mohan Chatterjee to file the complaint/case on behalf of the Rani. The reference regarding non-signing of the complaint was only obiter dicta.
25. In the case of Corporation of Calcutta v. Calcutta Wholesale Consumers Co-operative Society Ltd also the main question for consideration was regarding the authority of a person for filing complaint. In that case complaint on behalf of the Calcutta Municipal Corporation was filed by one Dr. R. Chandra, Food Inspector who was not authorised by the Calcutta Municipal Corporation, a local authority, but was authorised by the Health Officer of the Calcutta Corporation, whereas the complaint can be filed by the Commissioner alone for and on behalf of the Calcutta Corporation. In the title of the complaint, the name of the Calcutta Corporation was written but it was filed through Dr. R. Chandra, Food Inspector. Dr. R. Chandra had not signed the complaint and had not put the signature at the bottom of the petition and only the facsimile rubber stamp of the signature of the Commissioner was affixed purporting to be the complainant, whereas the complaint was filed through Dr. R. Chandra, Food Inspector. So in these circumstances, it was not clear as to actually who was the complainant. In that case also the question regarding the authority of Dr. R. Chandra to file the complaint was in question. The Calcutta High Court had come to the conclusion that the complainant was Dr. R. Chandra, but he was not competent to file the same. But in the instant
case, there is no dispute that Shri Ashok Goyal had been duly authorised by the complainant-company, vide resolution dated April 12, 1996, to institute the present complaint. Thus, the authority of Shri Ashok Goyal to institute the complaint is not in question.
26. Venkatesware Rao (V.) v. Mahee Handlooms Pvt. Ltd. is also not applicable to the facts of the case because in that case the cognizance was taken by the magistrate on a police complaint which was violative of Section 142 of the Act.
27. Section 465 of the Criminal Procedure Code provides that no order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint summons, warrant, proclamation, order, judgment or other proceedings, before or during the trial or in any inquiry or other proceeding’s under this Code or any error, or irregularity in any sanction for the prosecution unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. In the instant case also there is no failure of justice due to omission of the signature of Shri Ashok Goyal on the complaint. The signatures of the complainant appear to be a mere irregularity which can be cured. The case Ballabhdas Agarwala v. Chakravarty (J. C.), AIR 1960 SC 576, relied upon by learned defence counsel is also quite distinguishable on the facts. In that case a complaint was filed by the Health Officer of Hawara Municipality who was not competent as delegated authority to institute the criminal proceedings under the Act on the date on which he made complaint and it could not be sustained. Thus, the absence of a proper complaint was held not a mere defect or mere irregularity curable under Section 537 of the Criminal Procedure Code, it affected the jurisdiction and institution of proceedings. So in that case also the complaint was not held to be proper because it was not filed by a duly competent person. But in the instant case as already discussed, the complaint has been filed by a duly authorised person as per resolution dated April 12, 1996.
28. I also do not find any force in the contention of learned defence counsel that no permission to sign the complaint can be granted at this stage, because the complaint will become time-barred and it will be considered to be a fresh complaint from the date of signing, in view of the law laid down by our own High Court in the case of Harbhajan Singh Kalra v. State of Haryana [1993] 76 Comp Cas 371. That was a suit for recovery which was filed on September 28, 1976. On the date of filing the case/petition it was not signed or verified either by the plaintiff or the duly appointed attorney, though the case was signed by Shri Sharda Ram, advocate, who represented the plaintiff. The case was signed and verified by the plaintiff for the first time on July 29, 1977. The suit was filed on the basis of the pronote executed on September 29, 1973. The defendant had raised the objection that the suit is time-barred as the plaint was not signed or verified within period of limitation. But the High Court did not accept this contention and held that irregularity in the signature or verification of the plaint is a mere defect of procedure, it can be rectified at the later stage.
29. So keeping in view the above discussion I am of the considered opinion that mere omission of the signature of Shri Ashok Goyal on the present complaint is only an omission and irregularity and cannot be considered to be a violation of the mandatory provisions of Sections 138 to 142 of the Act. This omission/irregularity is procedural and has not caused any prejudice to the rights of the accused throughout the trial. Such type of procedural defect/irregularity can be got cured at any stage of proceedings. So there is no merit in the application of the accused for dismissal of the complaint, only due to omission of signature of Shri Ashok Goyal the duly authorised person by the company to institute the present complaint. Hence the application of the accused for dismissal of the complaint is hereby dismissed. As the absence of signature of Shri Ashok Goyal is an inadvertent lapse and is merely an omission and irregularity, so application of the complainant to grant permission to sign the complaint is hereby allowed. Shri Ashok Goyal through whom the present complaint has been filed is allowed to sign the original complaint.”
10. The present revision I am disposing of with the assistance rendered by Shri R. S. Cheema, senior advocate, who appeared on behalf of the petitioners, Shri R. S. Ghai, senior advocate, who appeared on behalf of the respondents and with their assistance I have gone through the record of this case.
11. I have already stated above that the main complaint was filed under Section 138 of the Negotiable Instruments Act. The relevant provisions for the purpose of disposing of the present revision are contained in Section 142 of the Act. This section reads as under :
“Cognizance of offence.–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 ;
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.”
12. A reading of the above section would show that no court would take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, by the holder of the cheque in
due course. This section starts with a specific provision that the provisions of the Negotiable Instruments Act shall apply notwithstanding anything contained in the Code of Criminal Procedure with regard to those provisions given in Sub-sections (a), (b) and (c) of this section, i.e., Section 142. Thus, in order to constitute a valid complaint for the purpose of Section 138 of the Act, there should be a complaint and that complaint must be in writing’. A close scrutiny of the provisions of Section 142 of the Act is not obligatory on the part of the complainant to establish that his complaint was signed by him or it. The word “complaint” has not been defined under the Act, but luckily it has been defined under the Code of Criminal Procedure and according to Section 2(d) of the Code “complaint” means any allegation made orally or in writing to a magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. The complaint under Section 138 of the Act is supposed to be tried as a warrant case instituted otherwise than on a police report. The scheme of the Code shows that wherever the Legislature wanted that any action on the part of a litigant should be signed, it has so stated in the relevant provisions. However, where the Code wants that a written complaint would be enough for the purpose of taking” cognizance, or for the purpose of summoning the accused, the things can go in that fashion without any difficulty. I would like to make a mention of Section 190 of the Code of Criminal Procedure. As per this section the magistrate of the first class or second class can take cognizance of any offence upon receiving a complaint of facts which constitute such offence. It does not talk that the complaint should be signed by the complainant. I have already incorporated the definition of “complaint” as defined under the Code. As per Section 200 of the Code once a complaint is instituted before a magistrate, he is supposed to examine upon oath the complainant and the witnesses. Their statements are supposed to be reduced into writing and those statements are further supposed to be signed by the complainant and the witnesses, meaning thereby that the complaint can be instituted in writing. It need not be signed by the complainant but the statement which shall be made by the complainant or on his or its behalf shall be reduced into writing and such statement is supposed to be signed by the complainant. Besides that, the statements of the witnesses examined by the complainant are also supposed to be signed, meaning thereby wherever the Code wanted that a particular act should be signed, it has to be signed. If the Code wants a written document and if a complaint is filed in writing before a Magistrate, who has taken cognizance over the matter, such a complaint is not bad in the eyes of law. To proceed further, I would also like to refer to the provisions of Section 154 of the Code of Criminal Procedure, which again states that every information relating to the commission of a
cognizable offence, if given orally to the officer in charge of a police station, shall be reduced into writing. It shall be read over to the informant and it shall also be signed by the person, who gives the information. Similarly, a reading of Section 164 of the Code indicates that if the magistrate is to record a confession, as per Sub-section (4) of this section it is supposed to be signed by the person making the confession.
13. Things do not rest here. Even the scheme of the Negotiable Instruments Act would show that the Legislature had not laid down a stress that the complaint under Section 138 of the Act should be signed by the complainant. A reading of the provisions of Section 138 shows that before a complaint is filed in a court of law, the holder of the cheque is supposed to give a notice to the drawer as per the provisions of Sub-section (b) of Section 138 of the Act. Supposing a notice is given by the holder of a cheque and that notice is not signed, whether in such eventuality it can be said that the notice was bad and, therefore, the complainant had no cause of action to file a complaint under Section 138 of the Act. The answer to this court would be in the negative. In this regard I would like to take assistance from Satyanarayana Gowda v. Rangappa (B.) [1997] 88 Comp Cas 433 (Kar), where it was held by the Karnataka High Court that when a notice under Section 138(b) of the Act is not signed by the advocate of the party, such notice is not bad because the provisions do not contemplate that notice under Section 138(b) should be signed by the party. In the present case when the complaint was filed on behalf of Modella Knitwear Ltd., Shri Ashok Goel appeared on behalf of the company in pursuance of the resolution and it was his statement which was recorded by way of preliminary evidence. After recording the preliminary evidence, cognizance of the offence was taken and the summons was issued to the respondent (now petitioners) to face the charge under Section 138 of the Act. As per Section 142 of the Act, no court shall take cognizance of an 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. Thus, it can be safely said that before taking cognizance, the magistrate had a complaint in writing before him. He had the statement of Shri Ashok Goel, which statement was reduced into writing and it was signed by him. In these circumstances, I do not see any infirmity in the impugned order when the learned magistrate allowed the application of the complainant to formally sign the complaint and other documents by rejecting the application of the present petitioners that the complaint should be dismissed as it was no complaint in the eyes of law.
14. Now, I proceed with the discussion of submissions raised by learned counsel for the petitioners and the case law which has been cited at the Bar by him. The principal argument raised by Shri Cheema was that the complaint filed under Section 138 was no complaint in the eyes of law. The
magistrate could not take cognizance of that complaint because it was not signed by the company or by any authorised person. Rather at one point of time, it is mentioned in the headnote of this complaint that it was going to be filed through Shri Ashok Goel. In para. No. 1 of the complaint, it is mentioned that it is going to be filed through Shri Arun Goel. The name of Shri Arun Goel finds mention in the list of witnesses but the name of Shri Ashok Goel finds mention on the completion of the complaint. I do not subscribe to the arguments of Shri Cheema as I have already stated that the requisite requirement under the Act and as per the provisions of Section 142 is that there should be a complaint in writing. Once there is a complaint in writing having the same meaning as under Section 2(d) of the Code of Criminal Procedure, the magistrate could take cognizance as per provisions of Section 200 of the Code after recording’ the preliminary evidence of the witnesses of the complainant and Shri Ashok Goel gave the appearance on behalf of the company in pursuance of the resolution passed by the company. It was Shri Ashok Goel, who appeared before the magistrate on the first date of hearing. His statement was recorded by way of preliminary evidence and thereafter the cognizance was taken. Learned counsel for the petitioners further relied upon Roy (A.K.) v. State of Punjab, AIR 1986 SC 2160 and submitted that where a statute confers a power to be exercised or performed in a specific manner, other modes of exercise or performance are impliedly barred. He stated that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. He relied upon para. No. 10 of this judgment, where it is stated as follows (page 2164) :
“If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceedings.
Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other modes of performance are necessarily forbidden. The intention of the Legislature in enacting Section 20(1) was to confer a power on the authorities specified therein which power had to be exercised in the manner provided and not otherwise.” So far as the position of law is concerned, there is no dispute, but the question is whether the principle of law laid down by the Supreme Court in this case is applicable to the facts in hand or not. The cited case was the case under the Prevention of Food Adulteration Act. We all know that under this Act power to initiate the prosecution for an offence has been conferred on the Food (Health) Authority by the State Government. In these circumstances the said Food (Health) Authority is alone competent to
file a complaint under the Prevention of Food Adulteration Act and is not entitled to delegate its power to anybody else. In that context, the Supreme Court was pleased to hold that when an act is supposed to be done by a particular authority, it has to be done by that authority and that power cannot be delegated to anybody else until and unless the Act permits to do so. In this case, the only requirement of Section 142 is that a complaint should be in writing. It is not the mandate of the law that only that complaint will become valid which is signed by a party for the purpose of taking cognizance. The cognizance is taken by a magistrate and is supposed to be taken when the magistrate applies his mind and decides to initiate a process against the accused and till that stage it is only an institution of a complaint.
Learned senior counsel then referred to Ram Kumar v. State of Haryana, AIR 1987 SC 2043 ; [1987] 71 FJR 373. This authority is not applicable. In this cited case the judges of the Supreme Court were interpreting the provisions of Section 132 and Section 197 of the Code of Criminal Procedure. As per the provisions of Section 132 the sanction to prosecute is accorded by the appropriate Government. For the purpose of taking cognizance against a culprit sanction is required under Section 197(2) of the Code of Criminal Procedure. The decision to prosecute a person is an independent act altogether from taking cognizance under Section 197(2). In this cited case the sanction was of the appropriate Government under Section 152 only, and the point arose whether on the basis of this sanction for prosecution, the court can take cognizance of the offence or not. The answer was in the negative, because the granting of sanction under Section 132 to launch the prosecution does not mean that sanction was given for the purpose of taking cognizance. The court has to see whether the Government had given the permission for the purpose of taking cognizance or not. Without valid sanction under Section 197(2) no cognizance can be taken with respect to certain specified offences. In this view of the matter, the second authority relied upon by learned counsel for the peti tioners is not of help to him.
Then reliance was placed on Nayak (R. S.) v. Antulay (A.R.), AIR 1984 SC 684. This authority is also not helpful to the petitioners. It does not lend any assistance to me. The ratio of this authority is “existence thus of a valid sanction is a prerequisite to the taking of cognizance of the offences. In the absence of such sanction the court would have no jurisdiction to take cognizance of the offences. A trial without a valid sanction where one is necessary under Section 6 is a trial without jurisdiction by the court”.
15. In the present case, I have already held above that the requirements of Section 142 of the Negotiable Instruments Act have been duly complied with when there was a written complaint before the magistrate and when on the basis of that complaint a statement has been recorded and the
magistrate took the cognizance on the basis of that written complaint corroborated by the statement of the authorised person.
16. Learned counsel Shri Cheema then referred to Ballabhdas Aytmuala v. Chakravarty (J.C.), AIR 1960 SC 576. My attention was invited to para Nos. 23 and 32 of this ruling. I have the occasion to go through this citation and in my considered opinion this authority is again off the mark. The Supreme Court was interpreting the provisions of the Calcutta Municipal Act and it was held that the provisions of Section 537 of the said Act were not merely enabling but were obligatory. I have already stated above what is obligatory for taking cognizance in a complaint under Section 138 of the Negotiable Instruments Act. At the cost of repetition I am saying it as per Section 142 which starts with the words “notwithstanding anything contained in the Code of Criminal Procedure, no court shall take cognizance of any offence punishable under Section 138 except upon a complaint in writing”. The requirement of law thus is that there should be a complaint in writing which was very much there before the Magistrate who took cognizance not only on the complaint in writing simpliciter, but also after recording” the statements of the witnesses. Mere filing of the complaint does not amount to that the Magistrate has taken cognizance. He will take cognizance once he sets the law in motion for the purpose of summoning the accused. The complaint under Section 138 is not required to be signed. However, if it is signed, it is an additional advantage for the complainant. At no point of time Ashok Goel or the company had disowned the complaint.
17. Learned counsel for the petitioner then referred to many other citations such as Kunhimuhammed v. Khadeeja (M.K.) [1998] 92 Comp Cas 610 (Ker); Koya Moideen (P.K.) v. Hariharan (G.) [1996] 86 Comp Cas 399 (Ker) ; Ashok Verma v. Ritesh Agro Pvt. Ltd. [1994] 1 Recent CR 562 ; Ess Bee Food Specialities v. Kapoor Brothers [1993] 78 Comp Cas 570 (P & H) ; Rakesh Nemkumar Porwal v. Narayan Dhondu Joglehar [1993] 78 Comp Cas 822 (Bom) ; Harbhajan Singh Kalra v. State of Haryana [1993] 76 Comp Cas 371 (P & H). With due respect I must say that none of the case law referred to above is helpful to me to determine the controversy. Summing up, this court is of the opinion that for taking cognizance of an offence under Section 138 of the Negotiable Instruments Act, there should be a complaint which should be in writing. It need not be signed by the complainant. The complaint will have the same meaning as defined under Section 2(d) of the Code of Criminal Procedure. By filing of the complaint cognizance is not taken. Cognizance is taken in a case filed on a complaint other than a police report in a warrant trial when the Magistrate applies his mind and issues the process to the accused/respondent to give answer to the allegations. The law has made a clear provision where it wants that a particular act should be done not only in writing but also signed by a party. There
is no requirement that a complaint must be signed by the party before taking the cognizance. In this case the cognizance has been taken.
18. During the course of submissions it was also pointed out by learned counsel for the respondents R. S. Ghai that the petitioners several times had agitated the matter before the High Court in different proceedings and at no point of time the complaint was ever challenged on the ground that it was not signed. Moreover, as per the provisions of Section 465 of the Code of Criminal Procedure, no finding, sentence or order passed by a court of competent jurisdiction can be reversed or altered by a court of appeal or revision on account of any error, omission or irregularity in the complaint, etc. I fully concur with the submissions of learned counsel for the respondents. If the complaint or the Mukhatyarnama remain unsigned on account of the negligence of the counsel, it cannot be said that there was no complaint in writing in the eyes of law. There was a valid complaint in writing, The authorised representative of the company was present when it was presented at the first instance and when it was marked to the Magistrate for disposal according to law. No prejudice has been caused to the petitioners. The petitioners will get full opportunity to rebut the case of the opposite party. The present revision has been filed in order to delay the matter. Resultantly, I do not see any merit in the present revision and the same is hereby dismissed, leaving the parties to bear their own costs.