IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 15 of 2006. Date of Decision:12-9-2008. Date of Decision: 14 .10.2008. _______________________________________________________ Mrs. Ruipinder Kaur. Petitioner. Versus M/s Nipso Poly Fabricks Limited. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?.No. For the Petitioner : Mr. Suneet Goel, Advocate. For the respondent : Mr. N.K. Sood, Surinder Singh, J The present petition has been preferred by the accused-petitioner for quashing and setting-aside the order dated 28-8-2001 and also the complaint No. 57-1-01preferred under Section 138 of the Negotiable Instruments Act by the respondent. The facts in brief giving rise to the present petition are that the respondent Company was dealing in the manufacturing and sale of HPDE woven fabric & sacks at Mehatpur, District Una. M/s SFL Industries Limited of which petitioner was the Director had been purchasing these articles some times on cash and some times on credit basis against their accounts maintained by both the parties. It is alleged that the accused- petitioner had issued Cheque No. CA/83 No. 801813 dated 9.12.2000 under her signatures for a sum of rupees 8, 49, 002.71 paise to discharge its legal liability and requested vide letter not to present the cheque for realization till January, 2001 due to some financial compulsions. This request was acceded to by the respondent in order to maintain business relations. Thereafter on 5.2.2001, the respondent deposited the said cheque with its Banker for collection which was received back with the remarks - 2 - that the funds were insufficient. The matter was taken up with the accused-petitioner and she assured to send the draft to the aforesaid amount on or before 22.2.2001 but the same was not sent. Accordingly, the statutory notice was served upon the petitioner, when the liability was not cleared, a complaint was filed. The complainant adduced the preliminary evidence and the learned trial Court found sufficient ground to proceed against the accused petitioner for the aforesaid offence. As such she was summoned for 17.12.2002 vide order dated 28.8.2001. Thereafter, the petitioner moved an application under Section 245 of the Code of Criminal Procedure for recalling the summoning order and dropping the proceedings against her inter alia on the ground that the complainant was not authorized to file the complaint on behalf of the Company and further that no proceedings could be initiated against her without impleading the company. It was also contended that similar type of complaint was filed against her which was quashed by this Court on 2.3.2001 copy of which was also annexed with the application. After hearing the parties, learned trial Court found that the application under Section 245 of the Code of Criminal Procedure was not maintainable in the case tried as a summons case under Chapter XX of the Code of Criminal Procedure and further that the respondent was a signatory of the cheque and further that the order of summoning of the petitioner cannot be recalled by the court exercising the criminal jurisdiction and the proper course for the accused was to file a petition under Section 482 of the Code of Criminal. As such the application under Section 245 Cr.P.C. was dismissed. Thus the petitioner preferred the instant petition whereby she precisely seeks to quash the complaint firstly on the ground that the complaint was not filed by duly authorized person and secondly, there was - 3 - no averment made in the complaint that the petitioner was responsible for the day-to-day work of the Company. I have heard the learned counsel for the parties and have carefully examined the record. It is an admitted fact that the cheque in question Exhibit C2 is signed by the accused-petitioner which was issued in the name of M/s Nipso Poly Fabriks Limited. The complaint was filed by the said Company through its Assistant Manager (Administration) Shri R.D. Sharma who was authorized by the said Company vide resolution dated 16.2.2001 (Exhibit C1) to file the complaint which fact prima facie has been substantiated by him as CW1. In fact, a company is a legal entity and has to be represented by some human agency while preferring a complaint before the Court. There is no express or explicit provision in the Act as to the manner in which the company is to be represented in a complaint before the Court in violation of the provisions under Section 138 of the Act. The person connected with the affairs of the company in the normal run of things who may be its Manager, Partner, Managing Partner or Director or any other person authorized by the Company, can represent it during the course of legal proceedings before the Court. Where the complaint has been filed by the Manager of the Company, it cannot be said that the complaint had been preferred by a person other than a Company which is not competent to do so. The resolution which was placed on record is a prima facie proof of authorization in favour of Shri R.D. Sharma, Assistant Manager to file the complaint. Therefore, the complaint in question cannot be said to be filed by the person not competent to do so. Hence this objection raised deserves to be dismissed. Secondly, the petitioner herein is a signatory of the cheque issued in favour of the respondent Company. It was allegedly dishonored and a statutory notice was issued within the stipulated period. Even despite that - 4 - the cheque amount was not paid. On the consideration of the preliminary evidence by the learned trial Court found it a fit case to take the cognizance. Section 142 of the Negotiable Instruments Act is in fact an independent provision than that of the provisions of Code of Criminal Procedure, 1973. The Court is not supposed to make a meticulous analysis of the facts, but it has only ensure that the ingredients of this Section constituted the dishonour of the cheque as an offence have been made out at the time of taking the cognizance. For applying the mind by the Magistrate forming an opinion as to whether there is sufficient ground for proceeding, the complainant must make out a prima facie case to proceed. In other words, it must contain the material to enable the Magistrate to make up his mind for issuing the process. In the instant case, as already stated above, the petitioner herein is a signatory of the cheque. In view of SMS Pharmaceuticals Limited –v- Nita Bhalla, 2005 (8) SCC 89, the accused being the signatory of the dishonoured cheque prima facie is clearly responsible for the incriminating act and is covered under sub-section (2) of Section 138 of the Act. Cr.M.M.O No. 34 of 2000 M/s SFL Industries Limited v/s M/s Nipro Poly Fabric Limited decided on 2.3.2001 relied upon by the petitioner has no relevance in the instant case. Therefore, no interference in the impugned order is called for, the petition is dismissed. Parties are hereby directed to be present before the trial Court on 5.11.2008. The records of the trial court be returned forthwith. Interim order dated 3.3.2006 is vacated. (Surinder Singh) Judge. October 14, 2008. (bm) - 5 -