Pritama Reddy Vs. Charminar Co-operative Urban Bank Ltd. and anr. - Court Judgment

Excerpt:
criminal - dishonour of cheque - andhra pradesh co-operative societies act, sections 138 and 141 of negotiable instruments act, karnataka agricultural produce marketing (regulation) act, 1966, section 26, order 4 rule 1 and order 6 rule 14 of code of civil procedure, 1908 and sections 199 and 482 of criminal procedure code - bank initiated proceedings against petitioner for dishonour of cheque - recovery manager of bank competent to initiate proceedings - neither absence of 'vakalatnama' nor ignorance of offence under proviso of section 141 is a valid ground to quash proceedings - held, petition to quash proceedings not sustainable. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - all the accused acknowledged the receipt of the notices sent by the bank, but they failed to remit the amounts as demanded. anwarullah by the managing director and, therefore, he can validly represent the complainant-bank, that the date of presentation of the complaint should be taken into consideration for all practical purposes but not the date on which it was re-presented after supplying the defects pointed out and, therefore, the complaints cannot be said to be barred by limitation and that the petitioners who were in-charge of and were responsible to the company/firm for the conduct of the business of the company/firm, as the case may be and, therefore, the petitioners as well as the company/firm shall be deemed to be guilty of the offence. 17. however, what is required in view of the judgement of the apex court referred to 1st supra and in view of the provisions of the act, the rules framed thereunder, and the bye-laws, is that the board of directors, with which the power to prosecute is clearly vested, shall authorise a person by means of a resolution to initiate proceedings against the violators. the initial presentation of the complaints was admittedly well within those dates and the subsequent re-presentation was beyond those dates. 28. for the foregoing reasons, all these criminal petitions fail and are dismissed.ordert. ch. surya rao, j.1. all these petitions have been filed invoking inherent jurisdiction of this court under section 482 of the criminal procedure code ('the code' for brevity) seeking to quash the criminal complaints filed against the petitioners herein in c.c. nos. 554/99, 547/99 and 548/99 on the file of the xvi metropolitan magistrate, hyderabad.2. the petitioner is the same in criminal petition nos. 4452 and 4453 of 2000 although the petitioner in 4455 of 2000 is different. the first respondent in all these petitions is the same being the complainant, who filed the criminal complaints against all these petitioners. since common questions of law are involved in all these petitions, they can be disposed of together.3. the factual matrix germane for consideration for an effective adjudication of the matter may be set forth hereunder thus: -4. the first respondent herein-the complainant is a co-operative urban bank established duly under the provisions of a.p. co-operative societies act and functioning under the name and style of 'the charminar urban co-operative bank limited'. it has its own bye-laws duly registered. the first accused in c.c. nos. 554/99 is m/s m.m. restaurant & resorts pvt. ltd; in 547/99 is m/s. fore shore marketing private limited; and in c.c. no. 548/99 is m/s. costal marketing and trading co. the second and third accused in the first two cases are the managing director and director respectively thereof and in the last case are the managing partner and partner respectively thereof. the third accused in all these cases are the petitioners herein. the complainant-bank filed the criminal complaints against them under section 138 of the negotiable instruments act ('the act' for brevity). according to the averments made in the complaint, a loan was sanctioned by the complainant-bank in favour of the first accused, which agreed to repay the said loan amount with interest at 21 per cent per annum in certain equal instalments. the first accused issued post dated cheques to the complainant-bank each representing the instalment amount to be paid for that month towards repayment of the said loan amount promising to get the cheques encashed as and when presented by the complainant-bank within its validity period. when the complainant-bank presented the cheques bearing nos. 663615, 015281, and 016912 for the amounts of rs. 6,07,708/-, rs. 3,80,000/-, and rs. 3,75,000/- respectively, drawn in favour of the complainant-bank, for encashment as per the instructions of the accused, the cheques were returned with the endorsement 'funds insufficient' on 13.07.1999, 06.07.199, and 06.07.1999 respectively. the complainant-bank, therefore, got issued legal notices under certificate of posting calling upon the accused to remit the amounts covered by those cheques with the complainant-bank. all the accused acknowledged the receipt of the notices sent by the bank, but they failed to remit the amounts as demanded. it is further averred in the complaints that the petitioners-accused being the directors and the partners of the company and firm, as the case may be, have been taking part equally in day to day affairs of the first accused and a-2 and a-3 in all these three cases are responsible for the day to day conduct of the business of the first accused and the cheques were issued by the first accused under the signature of the second accused with the knowledge and consent of the third accused and the dishonour of the cheques thus issued was also within the knowledge of the accused.5. pursuant to the summonses issued after having taken the complaints on file by the learned xvi metropolitan magistrate, hyderabad, all the accused appeared before that court. thereafter, the petitioners filed the present criminal petitions, as aforesaid, seeking to quash the proceedings on the premises that the petitioners had nothing to do with the cheque transactions and that they had not signed the cheques and that all the cheques had been signed by one mohan reddy representing the company/firm, as the case may be, and, therefore the petitioners herein were not responsible for the offence punishable under section 138 of the act.6. the first respondent-complainant-bank is resisting all these petitions.7. sri e. manohar, learned senior counsel appearing for the petitioners in all these cases, contends that inasmuch as the complaints were not signed on the date of their presentation before the court and subsequent appending signature by the complainant beyond the period of limitation will not cure the defect and, therefore, there was no proper presentation of the complaints within time, and sri mohd. anwarullah, the special power of attorney holder, who filed the complaints was not authorised by the board under a resolution passed in that regard specifically and, therefore, he cannot prosecute the complaints inasmuch as under section 138 of the act it is only the payee who shall be the complainant or the payee's authorised representative and, therefore, the complaints filed in these cases shall be quashed, and that the printed forms used in all these cases do not reflect the fact situation and hence the averments made therein cannot be taken on their face value and that the petitioners being the directors/partners are not responsible.8. sri c.b. ram mohan reddy, learned counsel appearing for the first respondent-bank on the other hand contends that in accordance with the resolution passed by the board dated 31.12.1998, a special power of attorney was executed in favour of the said mohd. anwarullah by the managing director and, therefore, he can validly represent the complainant-bank, that the date of presentation of the complaint should be taken into consideration for all practical purposes but not the date on which it was re-presented after supplying the defects pointed out and, therefore, the complaints cannot be said to be barred by limitation and that the petitioners who were in-charge of and were responsible to the company/firm for the conduct of the business of the company/firm, as the case may be and, therefore, the petitioners as well as the company/firm shall be deemed to be guilty of the offence.9. in view of the respective contentions, the points that arise for my determination in all these petitions are as to (1) whether mr. mohd. anwarullah, recovery manager of the first respondent-complainant-bank is duly authorised to file the complaints? (2) whether the presentation of the complaints is defective and the subsequent rectification of the defect cannot cure the defect and, therefore, the complaints are barred by limitation? and (3) whether the petitioners herein being the directors and partners respectively are not responsible, and cannot be prosecuted?point no. 1:10. the complainant in these cases is a juristic person. it has its own bye-laws. according to the duly registered bye-laws made available to me at the time of hearing of these cases, the name of the complainant is 'the charminar co-operative urban bank limited' with its registered office at h. no. 22-7-387/4, situate opposite to city civil court, hyderabad, and the bank is governed by the provisions of the a.p. co-operative societies act, 1964, the rules framed thereunder, and the bye-laws. the chief executive officer of the complainant-bank is the managing director appointed by the board of directors. clause (xiii) of bye-law no. 35 is the relevant bye-law for the present purposes. according to this bye-law, the board of directors is empowered to institute, defend, conduct, compromise, abandon, or withdraw any legal proceedings by or against the bank, or the board or its officers or employees. the board of directors shall consist of not more than 12 directors to be elected amongst the shareholder members of the bank and the managing director of the bank shall be the ex-officio director of the board. the chief executive officer, namely, the managing director of the bank, as per bye-law no. 39, shall be responsible to the board of directors and shall perform various functions enumerated in the said bye-law including the power or duties that may be delegated or entrusted to him by the board of directors or by the chairman of the bank.11. there will be a chairman of the bank who will be elected by the board of directors. the administration of the bank is obviously vested in the board of directors and the managing director shall exercise all powers and perform all duties as are entrusted to him by the board of directors. it is the board that is competent to sue or to be sued or to institute any proceedings. mr. mohd. anwarullah, who filed the complaints in these cases, is a recovery manager of the complainant-bank. he was authorised under a special power of attorney dated 30.10.1997 executed by the managing director of the bank authorising him to represent the bank before any court of law and to prosecute and defend all actions and proceedings and to sign and verify all complaints, written statements, applications, petitions, or documents in a court of law or before any department. he has also been authorised to enter into any agreement or compromise or to withdraw any suit or proceedings and to do all other lawful acts in connection with any suit or proceedings.12. at the time of filing the complaints, duly authenticated copies of the said power of attorney have been annexed with the complaints. no minutes or proceedings of the board meeting of the bank have been annexed therewith. however, at the time of hearing of these cases, a copy of the resolution of the board dated 15.10.97 has been made available. under this resolution dated 15.10.97, mr. mohd. anwarullah, recovery manager, was authorised to prosecute, conduct, attend, and appear in the court of law and to defend all actions, proceedings, and to sign and verify the petitions of documents in any court of law either in civil or criminal matters. 13. sri e. manohar, learned senior counsel appearing for the petitioners, contends that the proceedings of the board having not been filed along with the complaint, cannot now be looked into and in its absence, the special power of attorney executed by the managing director cannot duly authorise the said mohd. anwarullah to represent the bank. so as to buttress the said contention, the learned senior counsel seeks to place reliance upon a judgement of the apex court in secretary, agricultural produce marketing committee, d.k.district v. varadaya shenoy and another, : [1995]2scr524 . that was a case where the secretary of the karnataka agricultural produce marketing committee filed a complaint seeking to prosecute the accused therein for the violation of the provisions of the act and the rules framed thereunder. under the karnataka agricultural produce marketing (regulation) act, 1966, the power to launch a prosecution vests with the marketing committee and the functions in respect thereof are required to be carried out by the secretary on behalf of the marketing committee. it is for the marketing committee to decide whether or not to prosecute an alleged violator and after such decision is taken, the secretary of the marketing committee can be authorised by resolution or otherwise to file the complaint. under the provisions of the said act, the marketing committee is a body corporate, having perpetual succession and it may sue or be sued in its corporate name and the said act further provides for the delegation of different functions to various officers including the secretary under the act. under such circumstances, the apex court held that it was for the marketing committee to decide whether or not prosecution is required to be launched against an alleged violator and it was only after such a decision was taken, the secretary of the marketing committee could be authorised by resolution or otherwise to file the complaint and continue the proceedings against the offenders for and on behalf of the marketing committee in appropriate forum. the apex court further held that in the absence of any resolution or authorisation from the marketing committee, the secretary did not have any power to independently prefer or file any complaint or launch prosecution for the alleged violation of the act, the rules framed thereunder or the bye-laws.14. obviously, a decision shall be taken by the marketing committee to launch prosecution against the violators of the provisions of the act or the rules framed thereunder. it is apposite here to extract a passage from the said judgement of the apex court relevant in this context as hereunder thus:'there appears to be sound logic in not vesting the power in the secretary to launch prosecutions against the alleged offenders and to vest that power in the market committee itself. since, the marketing committee consists largely of the elected representatives, elected in the manner provided under the act, there is collective responsibility of the market committee to the functionaries of the marketing committee and therefore any prosecution which is required to be launched would need to be scrutinised and considered by the market committee itself because, the launching of prosecution, exposes the violator not only to face a trial but on conviction may be also subject to penal consequences. the framers of the act therefore specifically left the power to authorise prosecution, in the marketing committee while providing for delegation of the functions to prosecute on behalf of the marketing committee, to the secretary of the committee'.15. there was no policy decision taken by the committee to prosecute the violators. the secretary while discharging his functions as the chief executive of the committee proceeded to prosecute the violators. under the circumstances, the apex court held that such an act on the part of the secretary was not valid. however, leaving the point as to the requirement of authorisation by the board aside, here in the instant case, the acts alleged to have been committed by the petitioners herein during the course of the day-to-day banking business, therefore, no policy decision is strictly involved. to run banking transactions smoothly, it becomes obligation on the part of the managing director to institute the proceedings for realisation of the amounts due to the bank and to prosecute the persons for smooth running of the banking transactions. 16. the learned senior counsel appearing for the petitioners further seeks to place reliance upon a judgement of the calcutta high court in abhoyeswari v. kishori mohan banerjee, air 1914 calcutta 479 so as to drive home the point that there shall be a power of attorney or authorisation for the presentation of a specific complaint and a general power of attorney authorising the presentation of criminal complaints will not do. that was a case where a complaint was sought to be filed on behalf of rani abhoyeswari devi for alleged offence of committing defamation by one bhuban mohan chatterjee. it was held by the calcutta high court that a complaint should not be accepted which was not signed by the complainant and was not preferred by a person duly authorised to prefer that specific complaint. since it was a case of defamation, a complaint can be filed in view of section 199 of the code by the person aggrieved, namely, the person defamed. a power of attorney given in general terms to launch prosecution under the circumstances was rightly held as not sufficient by the calcutta high court since it was a case of defamation and there was no specific authorisation for filing the complaint in that regard. the complainant in these cases is the bank, which does the banking business. in its day-to-day business the bank has to initiate several proceedings either civil or criminal matters against the defaulters or the violators of the banking rules and regulations. these are certainly not personal. therefore, the judgement of the calcutta high court referred to 2nd supra is not germane for consideration in view of the different set of facts and circumstances in these cases. 17. however, what is required in view of the judgement of the apex court referred to 1st supra and in view of the provisions of the act, the rules framed thereunder, and the bye-laws, is that the board of directors, with which the power to prosecute is clearly vested, shall authorise a person by means of a resolution to initiate proceedings against the violators. the contention that there shall be a separate resolution for each complaint in this regard, taking shelter under the decision of the calcutta high court referred to 2nd supra cannot, for the reasons discussed supra, be countenanced.18. it is no doubt true that the resolution of the board dated 15.10.97, was not filed along with the special power of attorney annexed to the complaint. nor there has been any reference to the same inter alia in the special power of attorney. in satish & co. v. s.r. traders and others, 1999 (1) ald (crl.) 745 (ap), this court had an occasion to deal with a case where a complaint was filed by the manager of the company representing the same, who was not authorised to file a complaint under the provisions of sections 138 and 142 of the act. obviously, it is the payee who should file the complaint or the holder in due course of the cheque. a duly authorised agent of the payee or holder in due course, as the case may be, can obviously file the complaint. since the complaint was filed in that case by the manager but not by the managing director of the company, it required an authorisation from the managing director of the company. the complaint was filed on 20.07.1993 and later ex.p.1 authorisation letter dated 17.06.1993 was sought to be introduced one year after filing of the complaint. this court under the circumstances held that in the absence of such authorisation the court could not have taken the cognizance of the offence since there was no proper complaint in terms of section 142 of the act and subsequent ratification by the company would not cure the defects. that was a case where no authorisation was filed at the inception when the complaint was sought to be filed by the manager of the company. however, in these cases, mr. mohd. anwarullah, who filed the complaints, filed the special power of attorney executed in his favour by the managing director along with the complaints. the proceedings of the board dated 15.10.97, authorised mr. mohd. anwarullah to launch prosecution against the offenders. it is only pursuant to that resolution a special power of attorney was executed. it is not as though the initial presentation of the complaint was without any authorisation. therefore, the facts in these cases are different and the judgement of this court referred to 3rd supra has no application to the present set of facts. 19. in manjeet singh v. nirdosh finance investment and chit funds co. (p) ltd., : 2000(4)ald544 a learned single judge of this court held that the letter of authorisation to file the complaint cannot be refused to be received in evidence on the ground that it was not filed along with the complaint. in this judgement, the earlier judgement of this court in satish & co. v. s.r. traders and others (referred to supra) was distinguished.20. in sagayadurai v. j.d.electronics, 1997 (2) crimes 115 it has been held as under:'the company, though it is a legal entity, does not have soul, mind, body and limbs to walk to the court for preference of a complaint. the dictates of commonsense, practical wisdom, prudence and expedience impels the court in such a situation to allow the company to present a complaint before the court represented by some person connected with the affairs of the company. the person connected with the affairs of the firm, the company, in the normal run of things may be either its manager, partner, managing partner or director or any other person authorised by the company.'21. since the cheques were issued in favour of the first respondent-bank, the bank shall be the complainant. as per the bye-laws of the bank the power to launch prosecution is vested in the board of directors. that power can be delegated by the board either in favour of the chief executive officer, who is obliged to perform his functions or in favour of another, who is competent in the view of the board to represent the bank. there is no policy decision involved in this case as afore discussed. the special power of attorney in these cases was executed by the managing director of the bank. unlike in the case of secretary, agricultural produce marketing committee (referred to 1st supra) the managing director is not a departmental person and a paid employee of the bank. he represents the board of directors, and an ex-officio director of the bank. he represents the bank and, therefore, he is competent to authorise the recovery manager by executing the special power of attorney. by virtue of clause (ix) of bye-law no. 4, the managing director becomes the chief executive officer also. therefore, in my considered view, he cannot be equated with the post of secretary, who is a departmental employee having been appointed under the provisions of the karnataka agricultural produce marketing (regulation) act, 1966. even in the absence of the minutes of the board, the special power of attorney executed by the chairman and managing director is sufficient, in my considered view, to authorise mr. mohd. anwarullah, recovery manager, to launch the prosecution. point no. 2:22. the complaints were presented in these cases on 09.08.1999. on 10.08.1999 it was returned on an office objection taken since the complaints were not signed by the complainant and the complaints were filed without vakalath. the objection having been complied with, the complaints were re-presented on 20.09.1999. the complaints should be filed admittedly on or before 30.08.1999, 27.08.1999, and 26.08.1999 respectively. the initial presentation of the complaints was admittedly well within those dates and the subsequent re-presentation was beyond those dates. the complaint was signed obviously by the counsel for the complainant when it was presented initially. 23. subsequent supplying of the defect is of no consequence, according to the learned senior counsel appearing for the petitioners. in support of his contention, he seeks to place reliance upon a judgement of the madras high court in m.a.abdul khutoos v. ganesh and coy oil mills, 1999 cri.l.j. 3432 (mas). it was held in the said judgement that the complaint which was initially presented without the signature of the complainant and when re-presented with signature but beyond period of one month from the date of commencement of cause of action, the complaint was liable to be quashed as time barred. a learned single judge of the madras high court has taken the view that there was no proper presentation of the complaint initially for want of the signature of the complaint and the subsequent presentation would be proper, had it been within the period of limitation.24. the learned counsel appearing for the first respondent-bank, on the other hand, seeks to place reliance upon a division bench decision of this court in appu ramani v. the state, : 1993(1)alt370 . this court held that the relevant date for the purpose of limitation is that the date on which the complaint was filed in court and not the date on which cognizance was taken by the magistrate. if the complaint was filed within the period of limitation and if it was returned for rectifying the certain defects and it was re-presented after the period of limitation, the division bench of this court held that the complainant could not be blamed, who had approached the court quite within the period of limitation.25. section 2(d) of the code defines 'complaint'. according to this definition, complaint means any allegation made orally or in writing to a magistrate with a view to his taking action under the code, that some person, whether known or unknown, has committed an offence. the definition does not specifically say that it should be signed. however, under the civil procedure code, section 26, order 4 rule 1, and order 6 rule 14, say that the plaint shall be presented before the chief ministerial officer of the court and every pleading shall be signed by the party and his pleader but such a requirement under the provisions was held to be a matter of procedure and any mistake or omission therein can be cured or amended subsequently. it has been held by a division bench of the madras high court in subbiah pillai v. sankarapandyam pillai, a.i.r. 1948 madras 369 that the omission to sign or verify a complaint was not such a defect as could affect the merits of the case or the jurisdiction of the court. in view of this clear legal position, i am afraid i cannot concur with the view expressed by the madras high court (referred to 6th supra). there is no gainsaying that the complainant was present physically before the court. the complaints were signed by his counsel. therefore, the defect in the complaints for want of signature of the complainant will not, in my considered view, affect the merits of the case if any and such a defect can be cured at a later stage. when that is permissible, even when the complaints were re-presented subsequent to the date of limitation since the initial date of presentation is the criterion as was held by the division bench of this court in its decision referred to 7th supra, the complaints in these cases cannot be said to be barred by limitation. in d.venkata rao and another v. state, 2000 (2) a.l.d (crl) 458.this court held on facts that as cognizance was taken after 5 years after the offence under section 406 of the i.p.c it was barred by limitation. no ratio that the period of limitation shall be reckoned from the date of offence to the date of presentation of the complaint or to the date on which the complaint was taken was involved. on facts since it was more than 5 years when the cognizance was taken, as it was a clear case, it was held so. that cannot be taken to mean that as a proposition of law it was held so.point no. 3:26. in view of the specific averments made in the complaints that the petitioners were in-charge of and were responsible to the affairs of the company/firm and the cheques were given with their consent and knowledge and in view of section 141 of the act, they are deemed to have committed the offence punishable under section 138 of the act along with the company/firm. however, it is open to them under the proviso of section 141 of the act to plead always that the offence was committed without his/her knowledge or that he/she had exercised with due diligence to prevent the commission of such offence, but such proof can be put forth only at the time of the trial. inasmuch as specific averments have been made against the petitioners herein specifying the role played by them, it is not permissible to throw away the complaints at the threshold by exercising the inherent jurisdiction of this court under 482 of the code. 27. turning to the last contention on the side of the petitioners that the printed forms used in this case do not reflect the fact situation, i am afraid the same cannot be decided in these petitions and is got to be decided at the time of trial after giving an opportunity to the complainant. however it may be an eye opener to the complainant bank. 28. for the foregoing reasons, all these criminal petitions fail and are dismissed.

Judgment:
ORDER

T. Ch. Surya Rao, J.

1. All these petitions have been filed invoking inherent jurisdiction of this Court under Section 482 of the Criminal Procedure Code ('the Code' for brevity) seeking to quash the criminal complaints filed against the petitioners herein in C.C. Nos. 554/99, 547/99 and 548/99 on the file of the XVI Metropolitan Magistrate, Hyderabad.

2. The petitioner is the same in Criminal Petition Nos. 4452 and 4453 of 2000 although the petitioner in 4455 of 2000 is different. The first respondent in all these petitions is the same being the complainant, who filed the criminal complaints against all these petitioners. Since common questions of law are involved in all these petitions, they can be disposed of together.

3. The factual matrix germane for consideration for an effective adjudication of the matter may be set forth hereunder thus: -

4. The first respondent herein-the complainant is a Co-operative Urban Bank established duly under the provisions of A.P. Co-operative Societies Act and functioning under the name and style of 'The Charminar Urban Co-operative Bank Limited'. It has its own Bye-laws duly registered. The first accused in C.C. Nos. 554/99 is M/s M.M. Restaurant & Resorts Pvt. Ltd; in 547/99 is M/s. Fore Shore Marketing Private Limited; and in C.C. No. 548/99 is M/s. Costal Marketing and Trading Co. The second and third accused in the first two cases are the Managing Director and Director respectively thereof and in the last case are the Managing Partner and Partner respectively thereof. The third accused in all these cases are the petitioners herein. The complainant-Bank filed the criminal complaints against them under Section 138 of the Negotiable Instruments Act ('the Act' for brevity). According to the averments made in the complaint, a loan was sanctioned by the complainant-Bank in favour of the first accused, which agreed to repay the said loan amount with interest at 21 per cent per annum in certain equal instalments. The first accused issued post dated cheques to the complainant-Bank each representing the instalment amount to be paid for that month towards repayment of the said loan amount promising to get the cheques encashed as and when presented by the complainant-Bank within its validity period. When the complainant-Bank presented the cheques bearing Nos. 663615, 015281, and 016912 for the amounts of Rs. 6,07,708/-, Rs. 3,80,000/-, and Rs. 3,75,000/- respectively, drawn in favour of the complainant-Bank, for encashment as per the instructions of the accused, the cheques were returned with the endorsement 'funds insufficient' on 13.07.1999, 06.07.199, and 06.07.1999 respectively. The complainant-Bank, therefore, got issued legal notices under certificate of posting calling upon the accused to remit the amounts covered by those cheques with the complainant-Bank. All the accused acknowledged the receipt of the notices sent by the Bank, but they failed to remit the amounts as demanded. It is further averred in the complaints that the petitioners-accused being the Directors and the Partners of the Company and Firm, as the case may be, have been taking part equally in day to day affairs of the first accused and A-2 and A-3 in all these three cases are responsible for the day to day conduct of the business of the first accused and the cheques were issued by the first accused under the signature of the second accused with the knowledge and consent of the third accused and the dishonour of the cheques thus issued was also within the knowledge of the accused.

5. Pursuant to the summonses issued after having taken the complaints on file by the learned XVI Metropolitan Magistrate, Hyderabad, all the accused appeared before that Court. Thereafter, the petitioners filed the present Criminal Petitions, as aforesaid, seeking to quash the proceedings on the premises that the petitioners had nothing to do with the cheque transactions and that they had not signed the cheques and that all the cheques had been signed by one Mohan Reddy representing the Company/Firm, as the case may be, and, therefore the petitioners herein were not responsible for the offence punishable under Section 138 of the Act.

6. The first respondent-complainant-Bank is resisting all these petitions.

7. Sri E. Manohar, learned senior counsel appearing for the petitioners in all these cases, contends that inasmuch as the complaints were not signed on the date of their presentation before the Court and subsequent appending signature by the complainant beyond the period of limitation will not cure the defect and, therefore, there was no proper presentation of the complaints within time, and Sri Mohd. Anwarullah, the Special Power of Attorney holder, who filed the complaints was not authorised by the Board under a resolution passed in that regard specifically and, therefore, he cannot prosecute the complaints inasmuch as under Section 138 of the Act it is only the payee who shall be the complainant or the payee's authorised representative and, therefore, the complaints filed in these cases shall be quashed, and that the printed forms used in all these cases do not reflect the fact situation and hence the averments made therein cannot be taken on their face value and that the petitioners being the Directors/Partners are not responsible.

8. Sri C.B. Ram Mohan Reddy, learned counsel appearing for the first respondent-Bank on the other hand contends that in accordance with the resolution passed by the Board dated 31.12.1998, a Special Power of Attorney was executed in favour of the said Mohd. Anwarullah by the Managing Director and, therefore, he can validly represent the complainant-Bank, that the date of presentation of the complaint should be taken into consideration for all practical purposes but not the date on which it was re-presented after supplying the defects pointed out and, therefore, the complaints cannot be said to be barred by limitation and that the petitioners who were in-charge of and were responsible to the Company/Firm for the conduct of the business of the Company/Firm, as the case may be and, therefore, the petitioners as well as the Company/Firm shall be deemed to be guilty of the offence.

9. In view of the respective contentions, the points that arise for my determination in all these petitions are as to

(1) Whether Mr. Mohd. Anwarullah, Recovery Manager of the first respondent-complainant-Bank is duly authorised to file the complaints?

(2) Whether the presentation of the complaints is defective and the subsequent rectification of the defect cannot cure the defect and, therefore, the complaints are barred by limitation? and

(3) Whether the petitioners herein being the Directors and Partners respectively are not responsible, and cannot be prosecuted?

POINT NO. 1:

10. The complainant in these cases is a juristic person. It has its own Bye-laws. According to the duly registered bye-laws made available to me at the time of hearing of these cases, the name of the complainant is 'The Charminar Co-operative Urban Bank Limited' with its registered Office at H. No. 22-7-387/4, situate opposite to City Civil Court, Hyderabad, and the Bank is governed by the provisions of the A.P. Co-operative Societies Act, 1964, the Rules framed thereunder, and the Bye-laws. The Chief Executive Officer of the complainant-Bank is the Managing Director appointed by the Board of Directors. Clause (xiii) of Bye-Law No. 35 is the relevant Bye-law for the present purposes. According to this Bye-Law, the Board of Directors is empowered to institute, defend, conduct, compromise, abandon, or withdraw any legal proceedings by or against the Bank, or the Board or its officers or employees. The Board of Directors shall consist of not more than 12 Directors to be elected amongst the shareholder members of the Bank and the Managing Director of the Bank shall be the Ex-officio Director of the Board. The Chief Executive Officer, namely, the Managing Director of the Bank, as per Bye-law No. 39, shall be responsible to the Board of Directors and shall perform various functions enumerated in the said Bye-Law including the power or duties that may be delegated or entrusted to him by the Board of Directors or by the Chairman of the Bank.

11. There will be a Chairman of the Bank who will be elected by the Board of Directors. The Administration of the Bank is obviously vested in the Board of Directors and the Managing Director shall exercise all powers and perform all duties as are entrusted to him by the Board of Directors. It is the Board that is competent to sue or to be sued or to institute any proceedings. Mr. Mohd. Anwarullah, who filed the complaints in these cases, is a Recovery Manager of the complainant-Bank. He was authorised under a Special Power of Attorney dated 30.10.1997 executed by the Managing Director of the Bank authorising him to represent the Bank before any Court of Law and to prosecute and defend all actions and proceedings and to sign and verify all complaints, written statements, applications, petitions, or documents in a Court of Law or before any Department. He has also been authorised to enter into any agreement or compromise or to withdraw any suit or proceedings and to do all other lawful acts in connection with any suit or proceedings.

12. At the time of filing the complaints, duly authenticated copies of the said Power of Attorney have been annexed with the complaints. No minutes or proceedings of the Board Meeting of the Bank have been annexed therewith. However, at the time of hearing of these cases, a copy of the resolution of the Board dated 15.10.97 has been made available. Under this resolution dated 15.10.97, Mr. Mohd. Anwarullah, Recovery Manager, was authorised to prosecute, conduct, attend, and appear in the Court of Law and to defend all actions, proceedings, and to sign and verify the petitions of documents in any Court of Law either in civil or criminal matters.

13. Sri E. Manohar, learned senior counsel appearing for the petitioners, contends that the proceedings of the Board having not been filed along with the complaint, cannot now be looked into and in its absence, the Special Power of Attorney executed by the Managing Director cannot duly authorise the said Mohd. Anwarullah to represent the Bank. So as to buttress the said contention, the learned senior counsel seeks to place reliance upon a Judgement of the Apex Court in SECRETARY, AGRICULTURAL PRODUCE MARKETING COMMITTEE, D.K.DISTRICT v. VARADAYA SHENOY AND ANOTHER, : [1995]2SCR524 . That was a case where the Secretary of the Karnataka Agricultural Produce Marketing Committee filed a complaint seeking to prosecute the accused therein for the violation of the provisions of the Act and the Rules framed thereunder. Under the Karnataka Agricultural Produce Marketing (Regulation) Act, 1966, the power to launch a prosecution vests with the Marketing Committee and the functions in respect thereof are required to be carried out by the Secretary on behalf of the Marketing Committee. It is for the Marketing Committee to decide whether or not to prosecute an alleged violator and after such decision is taken, the Secretary of the Marketing Committee can be authorised by resolution or otherwise to file the complaint. Under the provisions of the said Act, the Marketing Committee is a body corporate, having perpetual succession and it may sue or be sued in its corporate name and the said Act further provides for the delegation of different functions to various Officers including the Secretary under the Act. Under such circumstances, the Apex Court held that it was for the Marketing Committee to decide whether or not prosecution is required to be launched against an alleged violator and it was only after such a decision was taken, the Secretary of the Marketing Committee could be authorised by resolution or otherwise to file the complaint and continue the proceedings against the offenders for and on behalf of the Marketing Committee in appropriate forum. The Apex Court further held that in the absence of any resolution or authorisation from the Marketing Committee, the Secretary did not have any power to independently prefer or file any complaint or launch prosecution for the alleged violation of the Act, the Rules framed thereunder or the Bye-laws.

14. Obviously, a decision shall be taken by the Marketing Committee to launch prosecution against the violators of the provisions of the Act or the Rules framed thereunder. It is apposite here to extract a passage from the said Judgement of the Apex Court relevant in this context as hereunder thus:

'There appears to be sound logic in not vesting the power in the Secretary to launch prosecutions against the alleged offenders and to vest that power in the market committee itself. Since, the marketing committee consists largely of the elected representatives, elected in the manner provided under the Act, there is collective responsibility of the market committee to the functionaries of the marketing committee and therefore any prosecution which is required to be launched would need to be scrutinised and considered by the market committee itself because, the launching of prosecution, exposes the violator not only to face a trial but on conviction may be also subject to penal consequences. The framers of the Act therefore specifically left the power to authorise prosecution, in the marketing committee while providing for delegation of the functions to prosecute on behalf of the marketing committee, to the Secretary of the committee'.

15. There was no policy decision taken by the committee to prosecute the violators. The Secretary while discharging his functions as the Chief Executive of the Committee proceeded to prosecute the violators. Under the circumstances, the Apex Court held that such an act on the part of the Secretary was not valid. However, leaving the point as to the requirement of authorisation by the Board aside, here in the instant case, the acts alleged to have been committed by the petitioners herein during the course of the day-to-day banking business, therefore, no policy decision is strictly involved. To run banking transactions smoothly, it becomes obligation on the part of the Managing Director to institute the proceedings for realisation of the amounts due to the Bank and to prosecute the persons for smooth running of the banking transactions.

16. The learned senior counsel appearing for the petitioners further seeks to place reliance upon a Judgement of the Calcutta High Court in ABHOYESWARI v. KISHORI MOHAN BANERJEE, AIR 1914 CALCUTTA 479 so as to drive home the point that there shall be a Power of Attorney or authorisation for the presentation of a specific complaint and a General Power of Attorney authorising the presentation of criminal complaints will not do. That was a case where a complaint was sought to be filed on behalf of Rani Abhoyeswari Devi for alleged offence of committing defamation by one Bhuban Mohan Chatterjee. It was held by the Calcutta High Court that a complaint should not be accepted which was not signed by the complainant and was not preferred by a person duly authorised to prefer that specific complaint. Since it was a case of defamation, a complaint can be filed in view of Section 199 of the Code by the person aggrieved, namely, the person defamed. A Power of Attorney given in general terms to launch prosecution under the circumstances was rightly held as not sufficient by the Calcutta High Court since it was a case of defamation and there was no specific authorisation for filing the complaint in that regard. The complainant in these cases is the Bank, which does the banking business. In its day-to-day business the Bank has to initiate several proceedings either civil or criminal matters against the defaulters or the violators of the banking rules and regulations. These are certainly not personal. Therefore, the Judgement of the Calcutta High Court referred to 2nd supra is not germane for consideration in view of the different set of facts and circumstances in these cases.

17. However, what is required in view of the Judgement of the Apex Court referred to 1st supra and in view of the provisions of the Act, the Rules framed thereunder, and the Bye-laws, is that the Board of Directors, with which the power to prosecute is clearly vested, shall authorise a person by means of a resolution to initiate proceedings against the violators. The contention that there shall be a separate resolution for each complaint in this regard, taking shelter under the decision of the Calcutta High Court referred to 2nd supra cannot, for the reasons discussed supra, be countenanced.

18. It is no doubt true that the resolution of the Board dated 15.10.97, was not filed along with the Special Power of Attorney annexed to the complaint. Nor there has been any reference to the same inter alia in the Special Power of Attorney. In SATISH & CO. v. S.R. TRADERS AND OTHERS, 1999 (1) ALD (Crl.) 745 (AP), this Court had an occasion to deal with a case where a complaint was filed by the Manager of the Company representing the same, who was not authorised to file a complaint under the provisions of Sections 138 and 142 of the Act. Obviously, it is the payee who should file the complaint or the holder in due course of the cheque. A duly authorised agent of the payee or holder in due course, as the case may be, can obviously file the complaint. Since the complaint was filed in that case by the Manager but not by the Managing Director of the Company, it required an authorisation from the Managing Director of the Company. The complaint was filed on 20.07.1993 and later Ex.P.1 authorisation letter dated 17.06.1993 was sought to be introduced one year after filing of the complaint. This Court under the circumstances held that in the absence of such authorisation the Court could not have taken the cognizance of the offence since there was no proper complaint in terms of Section 142 of the Act and subsequent ratification by the Company would not cure the defects. That was a case where no authorisation was filed at the inception when the complaint was sought to be filed by the Manager of the Company. However, in these cases, Mr. Mohd. Anwarullah, who filed the complaints, filed the Special Power of Attorney executed in his favour by the Managing Director along with the complaints. The proceedings of the Board dated 15.10.97, authorised Mr. Mohd. Anwarullah to launch prosecution against the offenders. It is only pursuant to that resolution a Special Power of Attorney was executed. It is not as though the initial presentation of the complaint was without any authorisation. Therefore, the facts in these cases are different and the Judgement of this Court referred to 3rd supra has no application to the present set of facts.

19. In MANJEET SINGH v. NIRDOSH FINANCE INVESTMENT AND CHIT FUNDS CO. (P) LTD., : 2000(4)ALD544 a learned single Judge of this Court held that the letter of authorisation to file the complaint cannot be refused to be received in evidence on the ground that it was not filed along with the complaint. In this Judgement, the earlier Judgement of this Court in SATISH & CO. v. S.R. TRADERS AND OTHERS (referred to supra) was distinguished.

20. In SAGAYADURAI v. J.D.ELECTRONICS, 1997 (2) CRIMES 115 it has been held as under:

'The Company, though it is a legal entity, does not have soul, mind, body and limbs to walk to the court for preference of a complaint. The dictates of commonsense, practical wisdom, prudence and expedience impels the court in such a situation to allow the company to present a complaint before the court represented by some person connected with the affairs of the company. The person connected with the affairs of the firm, the company, in the normal run of things may be either its manager, partner, managing partner or director or any other person authorised by the company.'

21. Since the cheques were issued in favour of the first respondent-Bank, the Bank shall be the complainant. As per the Bye-laws of the Bank the power to launch prosecution is vested in the Board of Directors. That power can be delegated by the Board either in favour of the Chief Executive Officer, who is obliged to perform his functions or in favour of another, who is competent in the view of the Board to represent the Bank. There is no policy decision involved in this case as afore discussed. The Special Power of Attorney in these cases was executed by the Managing Director of the Bank. Unlike in the case of SECRETARY, AGRICULTURAL PRODUCE MARKETING COMMITTEE (referred to 1st supra) the Managing Director is not a departmental person and a paid employee of the Bank. He represents the Board of Directors, and an ex-officio director of the Bank. He represents the Bank and, therefore, he is competent to authorise the Recovery Manager by executing the Special Power of Attorney. By virtue of clause (ix) of Bye-Law No. 4, the Managing Director becomes the Chief Executive Officer also. Therefore, in my considered view, he cannot be equated with the post of Secretary, who is a departmental employee having been appointed under the provisions of the Karnataka Agricultural Produce Marketing (Regulation) Act, 1966. Even in the absence of the minutes of the Board, the Special Power of Attorney executed by the Chairman and Managing Director is sufficient, in my considered view, to authorise Mr. Mohd. Anwarullah, Recovery Manager, to launch the prosecution.

POINT NO. 2:

22. The complaints were presented in these cases on 09.08.1999. On 10.08.1999 it was returned on an office objection taken since the complaints were not signed by the complainant and the complaints were filed without vakalath. The objection having been complied with, the complaints were re-presented on 20.09.1999. The complaints should be filed admittedly on or before 30.08.1999, 27.08.1999, and 26.08.1999 respectively. The initial presentation of the complaints was admittedly well within those dates and the subsequent re-presentation was beyond those dates. The complaint was signed obviously by the counsel for the complainant when it was presented initially.

23. Subsequent supplying of the defect is of no consequence, according to the learned senior counsel appearing for the petitioners. In support of his contention, he seeks to place reliance upon a Judgement of the Madras High Court in M.A.ABDUL KHUTOOS v. GANESH AND COY OIL MILLS, 1999 CRI.L.J. 3432 (MAS). It was held in the said Judgement that the complaint which was initially presented without the signature of the complainant and when re-presented with signature but beyond period of one month from the date of commencement of cause of action, the complaint was liable to be quashed as time barred. A learned single judge of the Madras High Court has taken the view that there was no proper presentation of the complaint initially for want of the signature of the complaint and the subsequent presentation would be proper, had it been within the period of limitation.

24. The learned counsel appearing for the first respondent-Bank, on the other hand, seeks to place reliance upon a Division Bench decision of this Court in APPU RAMANI v. THE STATE, : 1993(1)ALT370 . This Court held that the relevant date for the purpose of limitation is that the date on which the complaint was filed in Court and not the date on which cognizance was taken by the Magistrate. If the complaint was filed within the period of limitation and if it was returned for rectifying the certain defects and it was re-presented after the period of limitation, the Division Bench of this Court held that the complainant could not be blamed, who had approached the Court quite within the period of limitation.

25. Section 2(d) of the Code defines 'complaint'. According to this definition, complaint means any allegation made orally or in writing to a Magistrate with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence. The definition does not specifically say that it should be signed. However, under the Civil Procedure Code, Section 26, Order 4 Rule 1, and Order 6 Rule 14, say that the plaint shall be presented before the Chief Ministerial Officer of the Court and every pleading shall be signed by the party and his pleader but such a requirement under the provisions was held to be a matter of procedure and any mistake or omission therein can be cured or amended subsequently. It has been held by a Division Bench of the Madras High Court in SUBBIAH PILLAI v. SANKARAPANDYAM PILLAI, A.I.R. 1948 Madras 369 that the omission to sign or verify a complaint was not such a defect as could affect the merits of the case or the jurisdiction of the Court. In view of this clear legal position, I am afraid I cannot concur with the view expressed by the Madras High Court (referred to 6th supra). There is no gainsaying that the complainant was present physically before the Court. The complaints were signed by his counsel. Therefore, the defect in the complaints for want of signature of the complainant will not, in my considered view, affect the merits of the case if any and such a defect can be cured at a later stage. When that is permissible, even when the complaints were re-presented subsequent to the date of limitation since the initial date of presentation is the criterion as was held by the Division Bench of this Court in its decision referred to 7th supra, the complaints in these cases cannot be said to be barred by limitation. In D.VENKATA RAO AND ANOTHER v. STATE, 2000 (2) A.L.D (Crl) 458.this Court held on facts that as cognizance was taken after 5 years after the offence under Section 406 of the I.P.C it was barred by limitation. No ratio that the period of limitation shall be reckoned from the date of offence to the date of presentation of the complaint or to the date on which the complaint was taken was involved. On facts since it was more than 5 years when the cognizance was taken, as it was a clear case, it was held so. That cannot be taken to mean that as a proposition of law it was held so.

POINT NO. 3:

26. In view of the specific averments made in the complaints that the petitioners were in-charge of and were responsible to the affairs of the Company/Firm and the cheques were given with their consent and knowledge and in view of Section 141 of the Act, they are deemed to have committed the offence punishable under Section 138 of the Act along with the Company/Firm. However, it is open to them under the proviso of Section 141 of the Act to plead always that the offence was committed without his/her knowledge or that he/she had exercised with due diligence to prevent the commission of such offence, but such proof can be put forth only at the time of the trial. Inasmuch as specific averments have been made against the petitioners herein specifying the role played by them, it is not permissible to throw away the complaints at the threshold by exercising the inherent jurisdiction of this Court under 482 of the Code.

27. Turning to the last contention on the side of the petitioners that the printed forms used in this case do not reflect the fact situation, I am afraid the same cannot be decided in these petitions and is got to be decided at the time of trial after giving an opportunity to the complainant. However it may be an eye opener to the complainant Bank.

28. For the foregoing reasons, all these Criminal Petitions fail and are dismissed.