THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL PETITION Nos. 11270 and 11271 of 2011 COMMON ORDER: Since the point to be decided and parties in both the criminal petitions are one and same, they are being disposed of together by way of this common order. The brief facts that are necessary for disposal of the criminal petitions are that the 1st respondent herein (complainant) filed two private complaints on the file of the XX Addl. Chief Metropolitan Magistrate against the petitioners herein (accused) for the offences punishable under Sections 138 and 142 of the Negotiable Instruments Act 1881 (for short “the Act”) alleging that the 1st petitioner has approached the 1st respondent for providing Internet Band with services of different speeds from time to time; that as and when the term expired, fresh demand notices were raised by the 1st respondent and purchase orders of acceptance were received by the petitioners and, basing on the purchase orders, the 1st respondent has been providing services to the petitioners; that the petitioners used to make payments and, of late, they became negligent in payment of amounts; that towards part payment of outstanding amount, the petitioners issued some cheques in favour of the 1st respondent for an amount of Rs.3 lakh, that when the cheque was presented, it was returned with an endorsement “payment stopped”; that the 1st respondent got issued legal notices to the petitioners demanding them to pay the amounts covered by the cheques; that though the petitioners received the legal notices, they did not make any efforts to make the payment and, therefore, they are liable for punishment for the offences under Sections 138 and 142 of the Act; and that without properly considering or appreciating as to whether the ingredients of any offence have been made out or not, the learned Magistrate took cognizance of the offences and numbered the complaints as calendar cases. Learned counsel for the petitioners contended that the General Power of Attorney Holder has no authority to authorise anyone to file the complaints and that the complaints were filed by Sri K. Manikantan, whereas the sworn affidavits were filed by Sri D. Moses Paul and, therefore, prays to quash the proceedings. On the other hand, learned standing counsel appearing for the 1st respondent contended that the General Power of Attorney Holder Sri A. Seshagri Rao delegated powers to Sri D. Moses Paul and the same has been accepted by the 1st respondent Company; and that when a public servant filed a complaint under Section 200 of Cr.P.C., there is no need to record his sworn statement and, therefore, prays to dismiss the petitions. In so far as the contentions raised by the learned counsel for the petitioners are concerned, a public servant is defined under Section 21 Clause 12 of IPC which reads as follows: “Every person— (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956 ).] Illustration A Municipal Commissioner is a public servant. Explanation 1.-- Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not. Explanation 2.-- Wherever the words" public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. Explanation 3.-- The word" election" denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as by election.” The word “Person”, as defined under Section 11 of IPC, includes any Company or Association or body of persons, whether incorporated or not. In view of the above, the person, who filed the sworn affidavits, is a public servant within the meaning of Section 21 Clause 12 of IPC. It is not in dispute before this Court that the 1st respondent Company is a body corporate registered under the Companies Act 1956. Therefore, under Section 200 of Cr.P.C., when a public servant filed a complaint, there is no need to record his sworn statement. Coming to the next aspect, Sri A. Seshagri Rao was appointed by the 1st respondent Company as General Power of Attorney to do all deeds and acts, which the Company is authorised to do through the attorney. So, the General Power of Attorney Holder is empowered to delegate his powers and, accordingly, he delegated his powers to Sri D. Moses Paul and, in pursuance of the same, he filed sworn affidavits in lieu of chief examination. Therefore, the contentions raised by the learned counsel cannot be accepted and the criminal petitions are devoid of merits and the same are liable to be dismissed. Accordingly, the criminal petitions are dismissed. Miscellaneous petitions, if any, filed in the criminal petitions shall stand closed. ______________________ JUSTICE K.C. BHANU 10th February, 2012 cbs THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL PETITION Nos. 11270 and 11271 of 2011 (Dismissed) 10th February, 2012 cbs