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Judgment
Ms. R. Mala, J.—Heard both sides.
The petitioners, who are accused Nos.1 to 3 in S.T.C. No. 6123 of 2010, on the file of learned Judicial Magistrate, Sivakasi, have come forward with the present petition to quash the complaint filed under Section 200 Cr.P.C., for the offences punishable under Sections 138 and 142 of Negotiable Instruments Act, raising two limb of arguments.
The first contention is that the power of attorney executed by Anilmehta in favour of the respondent herein is not in accordance with law and it is defective in nature. To substantiate the same, he relied upon a decision reported in A.C. Narayanan v. State of Maharashtra, 2013(5) CTC 560.
The second limb of argument is that as per the decision of the Apex Court, in a proceedings under Section 138 and 142 of Negotiable Instruments Act [herein after referred to as ''the Act''], the Company must be the necessary party and notice should be issued to them. However, in the case on hand, no notice under Section 138(b) of the Act was issued to the Company concerned. To substantiate the same, he relied upon a decision of the Apex Court reported in Kirshna Texport and Capital Markets Ltd. v. ILA A. Agrawal, 2015 (2) MLJ (Crl) 708 (SC).
Resisting the same, the learned counsel for the respondent would submit that since the original complainant is an aged person, he executed a power of attorney in favour of one S.K. Mariappan. The petitioners have no locus standi to question the power of attorney, because it is between the principal and his agent. He would further submit that notice was also sent to the first and third accused and to prove the same, acknowledgement cards have been enclosed at page Nos.4 and 5 of the typed-set of papers. Therefore, the contentions raised by the petitioners will not hold good and the same cannot be a reason to quash the complaint filed under Section 200 Cr.P.C. Hence, he prayed for dismissal of this petition.
I have considered the rival submissions made on either side and perused the typed-set of papers.
Admittedly, the respondent herein, as a complainant, preferred a complaint under Section 200 Cr.P.C., for the offence punishable under Sections 138 and 142 of the Act, stating that the first accused is a registered Private Limited Company and the second and third accused are the Directors of the first accused Company and the second and third accused, on behalf of the first accused, entered into an oral agreement with the complainant on 07.01.2010 for the purpose of fabrication and installation of glass staircase work at complainant''s bungalow for Rs.4,75,000/- and as per the oral agreement, the complainant paid a sum of Rs. 2,00,000/- in the name of the first Accused Company on 11.01.2010, but, whereas, the accused did not do any work as per the oral agreement. When he made a request to return the amount, the third accused issued a cheque for Rs.1,75,000/- dated 11.09.2010, on behalf of the first and second accused and when it was presented for encashment on 13.09.2010, that has been returned as ''Exceed Arrangement'' on 17.09.2010 and after issuance of statutory notice, he preferred a private complaint under Section 200 Cr.P.C., for the offences punishable under Sections 138 and 142 of the Act.
Coming to the first contention of the petitioners that the power of attorney is defective in nature, it is appropriate to consider the power of attorney, which was enclosed at page Nos.6 and 7 of the typed-set of papers. The power of attorney was executed in the presence of notary public. In such circumstances, I am of the view that the petitioners, who are third parties, are not the competent persons to question the same. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the petitioners reported in A.C. Narayanan v. State of Maharashtra, 2013(5) CTC 560, in which, it was specifically stated that the power of attorney is entitled to file a complaint under Section 138 only in the name of his principal and not in his own name. Therefore, on going through the judgment along with the facts of the present case, I am of the view that the argument advanced by the petitioners that the power of attorney is defective in nature does not merit acceptance.
While considering the second limb of argument that no notice under Section 138(b) of the Act has been issued to the Company, in a proceedings under Section 138, the Company is a necessary party. A perusal of the complaint would go to show that the Company has entered into an oral agreement to do some work and received the advance amount of Rs.2,00,000/- and since the Company has not carried out the work as per the oral agreement, the complainant demanded for return of the advance amount, for which, the third accused, on behalf of the first and second accused, has issued a cheque for a sum of Rs.1,75,000/- and when it has been presented for encashment, that has been returned as ''Exceed Arrangement''. It is the well settled dictum of the Apex Court that the Company must be a party in a proceedings under Sections 138 and 142 of the Act.
At this juncture, this Court has to decide as to whether statutory notice has been issued to the Company concerned.
On a perusal of the documents filed by the petitioners, it is seen that notice was served to one S.P. Umasankar, Director, the third petitioner herein and another notice was issued to the Director of the Company. In such circumstances, the second argument of the petitioners also does not merit acceptance.
The learned counsel for the petitioners relied upon a decision of the Apex Court in Kirshna Texport and Capital Markets Ltd. v. ILA A. Agrawal, 2015 (2) MLJ (Crl) 708 (SC), wherein at paragraph No.16, it was specifically mentioned that the Company in question must also be issued individual notices under Section 138 of the Act, but, here, as already stated, notice has been issued to the Company also. In such circumstances, the argument advanced by the petitioners'' counsel that no notice has been issued to the Company does not merit acceptance.
For all the reasons stated above, I am of the view that it is not a fit case to quash the complaint and the petition deserves dismissal and accordingly, it is, hereby, dismissed. Consequently, the connected miscellaneous petitions are also dismissed. However, since the case is of the year 2010, the learned Judicial Magistrate, Sivakasi, is directed to dispose of the case in S.T.C. No.6123 of 2010, on merits and as per law, within a period of three months from the date of receipt of a copy of this order. It is made clear that the observation made herein shall not influence the mind of the trial Court, while disposing of the case in S.T.C. No.6123 of 2010.