IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 Crl.Rev.Pet.No. 1914 of 2011() ------------------------------ CC.797/2009 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... REVN. PETITIONER: COMPLAINANT -------------------------------- SREE GOKULAM CHIT & FINANCE CO.(P)LTD., SREE GOKULAM TOWERS, NO.66(OLD NO.356),ARCOT ROAD, CHENNAI-600024,REP.BY AUTHORISED REPRESENTATIVE AND P/A HOLDER JOBY CHACKO, AGED 37 YEARS, S/O.K.C. CHACKO, LEGAL CLERK,SREE GOKULAM CHIT & FINANCE CO.(P)LTD., ALLEPPEY BRANCH, ALLEPPEY. BY ADV. SRI.K.S.BABU RESPONDENTS/ ACCUSED AND STATE -------------------------------- 1. SHYNI.M.S, W/O. FAISAL, HARIS MANZIL, MUNICIPAL STADIUM WARD, EAST OF P & T QUARTERS, ALLEPPEY, ALAPPUZHA - 688 001. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. R1 BY ADV. SRI.P.KRISHNA KUMAR (ALAPPUZHA) SRI.SUNIL J.CHAKKALACKAL PUBLIC PROSECUTOR SMT.SEENA R. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. --------------------------------------------- Crl.R.P.No. 1914 of 2011 --------------------------------------------- Dated this the 18th day of October, 2011 ORDER Revision is by the revision petitioner/complainant against the dismissal of a complaint filed against the first respondent for the offence under Section 138 of the Negotiable Instruments Act, (for short the N.I.Act). The complaint was presented through one of its employees, who presented it with an authorisation letter from the complainant. The learned magistrate after examining the authorization letter, which was issued under the letter pad of the complainant/company, was not satisfied, observing that the clerk of the complainant/company could not have direct knowledge of the transaction over the cheque covered by the complaint. It was also opined that the authorisation issued to such clerk under the letter pad is not sufficient to confer on him authority to present and prosecute the complaint. Making observations as above and holding that the complainant is absent, the learned magistrate dismissed the compliant. Propriety, legality and correctness of that order has challenged in the revision. 2. Learned counsel for the revision petitioner/complainant Crl.R.P.No. 1914 of 2011 2 relying on National Small Industries Corporation Limited v. State (NCT of Delhi) and Others {(2009) 1 SCC 407} assailed the order of the magistrate dismissing its complaint as unsustainable under law. Where a company files a complaint for offence under Section 138 of the N.I. Act it can be represented by its authorised representative including any of its employee, is the submission of the counsel. Submission made by the counsel is well founded. In the aforesaid decision considering the question as to who would be the complainant in a complaint for the offence under Section 138 of the N.I.Act, the Apex court has observed thus: “The term “complainant” is not defined under the Code. Section 142 of the NI Act requires a complaint under Section 138 of that Act to be made by the payee (or by the holder in due course). It is thus evident that in a complaint relating to dishonour of a cheque (which has not been endorsed by the payee in favour of anyone), it is the payee alone who can be the complainant. The NI Act only provides that dishonour of a cheque would be an offence and the manner of taking cognizance of offences punishable under Section 138 of that Act. However, the procedure relating to initiation of proceedings, trial and disposal of such complaints, is governed by the Code. Section 200 of the Code requires that the Magistrate, on Crl.R.P.No. 1914 of 2011 3 taking cognizance of an offence on complaint, shall examine upon oath the complainant and the witnesses present and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses. The requirement of Section 142 of the NI Act that the payee should be the complainant, is met if the complaint is in the name of the payee. If the payee is a company, necessarily the complaint should be filed in the name of the company. Section 142 of the NI Act does not specify who should represent the company, if a company is the complainant. A company can be represented by an employee or even by a non-employee authorized and empowered to represent the company either by a resolution or by a power of attorney”. 3. Authorization was issued in a letter pad of the company is no ground to doubt the authority conferred on the complainant to present the complaint on behalf of the company. If at all any challenge over the authorization is made by the accused, it can be decided at the appropriate stage. At the inception, when the authorization letter produced and if it shows sufficient authority has been conferred on the clerk to present the complaint, then, his authority to do so, need not be doubted simply for the reason that such authorization has been issued in the letter pad of the company. Setting aside the Crl.R.P.No. 1914 of 2011 4 impugned order, the Magistrate is directed to take back the complaint and dispose the same in accordance with law. Revision disposed. Sd/- S.S.SATHEESACHANDRAN, JUDGE. Rkc //True Copy// PA to Judge