Section 138 nia effect of not filing the authority letter

The accused (company) remained absent from proceeding.

Dear Ashok

the case is not maintainable without the Authority letter or resolution, who is complainant? if company then through director or any other person?

Dear Ashok

the case is not maintainable without the Authority letter or resolution, who is complainant? if company then through director or any other person?

Dear Nadeemji

I think this defect is curable and can be rectified with the permission of the Court anytime!

What is your opinion on this?

Or you say that the case cannot be maintained to the extent that it will be dismissed for good on this ground?

Mr Ashok Kumar you are very right ,said defect is curable.S.C in criminal appeal titled as M.MT.C ltd vs Modchi chemicals & Pharma Pvt.Ltd, reported in A.I.R 2002 S.C 182 held,the defect can be cured at any stage of trial.

Thank You Bharteshji

You are always and ever so helpful in removing doubts

Dear Bharteshji

I would like ur comments on the  following 

Section 138 NIA Agreement with Company, Case Filed by Individual Director

Section 138 NIA The complainant (Individual Director) claims that the Company in which he (the complainant) is the Director entered into an agreement with the accused through the Director (Complainant) but the case is filed by this director in his individual capacity and the cheque is also drawn in his individual capacity.

What will be the fate of such a case? (To my mind this is a fatal case with no chance of success). Comments invited from learned fraternity members.

ashokkumar@calibreplacements.com

I am aware of this order of SC, but this question must be agitated by defense counsels at all stages.

SC it appears has taken NI Act, too lightly, despite deluge of cases and came up with various half hearted orders, one of them is this MMTC order. This order is not an order about which SC can be proud of. In a recent SC order, another SC bench, had the opportunity to set this aside in light of Bhojwani GPA case, but just let it pass. This order cannot be generalized.

We can miss, but how SC could miss section 200 of the Indian Contract Act ?? Read that and find out for yourself if authority can be given after the act to injure a third person ?

Yes what can be permitted is, to file the authority at a later stage, if due to some mistake the same was not filed earlier, but the authority must be there with  the person on the date of notice/complaint.

Dear  Trivediji

I salute you for your BOLD comments on SC

SC it appears has taken NI Act, too lightly, despite deluge of cases and came up with various half hearted orders, one of them is this MMTC order. This order is not an order about which SC can be proud of. In a recent SC order, another SC bench, had the opportunity to set this aside in light of Bhojwani GPA case, but just let it pass.

True a layman can miss but how SC can afford all this

I was also mind boggled to once read Justice Markendu Katju's (SC then) decision where he held that telecom customers are NOT CONSUMERS for the purpose of the Consumer Act. Of Course that being a faulty decision no Consumer Forum ever abided by it

But such instances are numerous

The most recent being the SC decision to turn down the Delhi High Court's one of the most laudable decision on Gay Rights

One more such absurd decision was rejection of the PIL by SC seeking curb on the uncontrolled utterrances of the Politicians

Coming to your logic in the instant matter, now when u say "Yes what can be permitted is, to file the authority at a later stage, if due to some mistake the same was not filed earlier, but the authority must be there with  the person on the date of notice/complaint.

The question that arises is that how can any defence lawyer prove that whether the authority was there earlier also and what lapsed was just a filing of it!! Because the moment a defence Lawyer points out this lapse, the complainant would maintain that the authority is there and then he would go to his Office and get an authority drafted (in back date) and present it in the Court in the next hearing!

In the Companies Act (Law) There is no compulsion of filing all resolutions with the Registrar of Companies and the authority to file a case is also  one such non-serious kind of resolution (in the eyes of lawmakers & implementers) It is just sufficient to have a resolution passed

The Hon Madras High Court in Habibunnisa Beevi vs Perumal on 6 September, 2007 ruled as under…

………..12. If Ex.A.4 agreement is considered in the light of the provisions contained in Section 200 of the Indian Contract Act, it could be easily held that Ex.A.4 is not binding on the defendant………

……..Though the plaintiffs 1 to 3 have executed a power of attorney deed constituting the first plaintiff's husband as their power of attorney agent to file a suit and the suit has also been filed for recovery of possession, the subsequent execution of the power of attorney deed, in the considered view of this Court cannot ratify the act of the first plaintiff's husband entering into Ex.A.4 agreement.

And Read S.85 of the Indian Evidence Act, what is the probate value of a self made document ?  If what you say (or fear) starts happening then what is the value of S.200 of The Indian Contract Act ?

Please note that if any authority transfer is there, it would find the mention in the complaint, if it is so, then document can be filed later on also with an apology that it got missed, but if there is no mention in the complaint then producing any new document (stating that to be old) is of no value. In the very recent order hon SC has passed an order that GPA holder must state in the complaint about his being the witness to the transaction.

".......Gay Right order of SC.. ....." The SC is the court of equity and court of law as well. Law states that it is unnatural.... no section of constitution is getting violated with this statement...So SC could not have ordered otherwise. SC (or any court) is bound to give decision based on the law however absurd the law may be, they cannot give decision based on their opinion or majority opinion. 

In this case at the best SC could have done was to convey to the legislature that a re-look is required. Almost every educated person knows that it is bad to make gays criminal, but then it is the call of legislature not that of courts. 

I appreciate the in-depth knowledge and the valuable information passed on by learned advocate Mr. Trivedi on many issues.  The answer to the query is that the complainant cannot produce the authority letter or GPA which is not having a date prior to the date of complaint, the said document cannot be post dated to the complaint, the case will be fatal..

Fate of the case is it will be an admissible case.

For filing a case under section 138 NI ACT  does not necessarily require any Board's Resolution simply a letter granting authority to any officer of the company shall make him a JURISTIC PERSON TO FILE A CASE.