Board resolution/power of attorney.
RAJAGOPALAN NAIR
(Querist) 25 January 2014
This query is : Resolved
Dear Sirs
A complaint under Section 138 of NI Act (cheque bouncing) was filed in the Magistrate Court. The Complainant is an employee of the Company who has been authorised by a Board Resolution passed in the Board of Directors Meeting to initiate legal proceedings against the Accused.
Brief facts:
The Accused obtained loan from the Complainant Company registered under the Company’s Act. The Loan Agreements and other documents were signed by the Directors of the Company and the Accused. The Authorised person who is holding Board Resolution, was not a signatory to the transaction and he was not a witness to the transaction.
The Affidavit of Evidence is also filed by the Complainant. The stage was for cross examination. The Accused submitted an application saying that the Complainant cannot be allowed or permitted to examine the PW1 as Prosecution Witness since PW1 has neither interacted with the Accused, nor handled the alleged transaction on behalf of the complainant with the Accused, nor signed any document for and on behalf of the Complainant, in favour of the Accused. He is familiarized with the transaction through record.
The Accused also cited Judgement regarding the legal rights of Power of Attorney holder in the following cases:
1. A.C. Narayanan V/s. State of Maharashtra & Anr. By Hon’ble Supreme Court.
2. Janki Vashdeo Bhojwani and Anr. V/s. Industrial Bank Ltd.
3. Shambhu Dutt Shastri V/s State of Rajasthan.
Question:
1. All the above judgements are based on Power of Attorney holder holding the power on behalf of some other individual. Is it applicable to Corporate ?
2. In our case, the Complainant is a Corporate body and employees come and go and we cannot get the ex-employees for cross examination. Even if the persons signed the documents are still with the Company, since they are being Directors, they authorize a particular person from legal department to represent the Company. Is this position correct?
3. What is the Difference between Power of Attorney and Board Resolution?
Thanks in advance for your valuable guidance.
Devajyoti Barman
(Expert) 25 January 2014
1.Your conducting lawyer can better help you.
2.Yes
3. Academic query.
Rajendra K Goyal
(Expert) 25 January 2014
1. Your lawyer would search appropriate judgements and can advise better.
2. Position is correct.
3. consult your lawyer.
RAJAGOPALAN NAIR
(Querist) 25 January 2014
Thanks to the experts. Can someone give me a detailed reply, please.
T. Kalaiselvan, Advocate
(Expert) 26 January 2014
This query is in your academic interest. You have quoted the citations of settled laws on the subject. If you are one of the directors of the company your concern on the subject may be appreciated but you have not stated your position in the company and also it seems you never bothered to or dared to ask your company's legal section/lawyer/adviser this academic query. For your information, the accused can raise such objections, it is the court which will decide about such objections whether to sustain or to overrule.
Advocate. Arunagiri
(Expert) 26 January 2014
Adv.kalaiselvan. I am also having the same view on the query.
RAJAGOPALAN NAIR
(Querist) 27 January 2014
Thanks everyone for your kind feedback
