Time of passing of a resolution to give authority to lodge a complaint u/s 138 of ni act.
basavaraj shiromani
(Querist) 11 July 2014
This query is : Resolved
In the year 2009, a company passed a resolution that " a person violated the conditions of contract deed and therefore in order to initiate legal proceedings, Mr X is authorized to sign on the necessary papers"
subsequently in the year 2010, company says, the accused issued a cheque. It was bounced, Issued legal notice-not replyied- then the company lodged a complaint under the representation of Mr.X on the basis of resolution passed in the year 2009.
whether is maintainable on the basis of said resolution.
when a company can pass resolution to give authorization to lodge a complaint u/s 138 of NI act ?
whether the resolution must with relation to cause of action to file complaint.
Nadeem Qureshi
(Expert) 11 July 2014
Dear Mr. Shiromani
if the resolution was passed by the company only for specific person then this resolution will be applicable only against that person.
if the accused and the person who violated the conditions of contract deed is same then the resolution to give authorization to initiate legal proceedings is valid and the complaint based on this resolution is maintainable.
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ajay sethi
(Expert) 11 July 2014
whether person mentioned in resolution of 2009 and accused whose cheque bounced in 2010 is the same person ?
Guest
(Expert) 11 July 2014
Any link between the contract deed and the cheque or the executor of the contract deed and the drawer of the cheque?
Rajendra K Goyal
(Expert) 11 July 2014
Author,
Please answer the questions raised by the experts.
basavaraj shiromani
(Querist) 11 July 2014
Mr. Dingra, suspects something near to my question. I have already told that the resolution in question is the year of 2009 and there cannot be given any link to cheque in question because the person, accused has issued a cheque in the year 2010. Therefore, the resolution is passed for the violation of contract conditions and to initiate legal proceedings as per the contract. However the company alleges that the accused has issued a cheque in the year 2010. There is no nexus or inter connection between resolution or chqeue bounce.
here in this case Mr. X is an un authorised person to file a complaint on behalf of the company because, there is no resolution or authorization by the company to initiate legal proceedings regarding chque bounse couse. Sec 138 of NI Act is very clear. In the year 2009 no offence was commintted by the accused as he was not at all issued any cheque in favour of the company.
When the cheque in question issued to the company and when it bounced then only cause of action arises and on that reason, the company can pass a resolution in favour of any body to take legal action agaisnt the accused u/s 138 of NI Act.
Therefore in my opinion on the basis of resolution passed in the year 2009, Mr. X is not authorised person to file a complaint agaisnt the accused u/s 138 of NI Act.
Mr.Shethy, the person that means an accused person only. Mr. Dingra's doubts are right and Rajendra Goyal told to answer. and i am not admitting the opinion of Qureshi
still i am in doubt that, what is the actual time to pass a resollution to file a complaint u/s 138 of NI Act in this case ?
whether resolution can be filed at any time even before committing an offense as alleged by the comapany ?
thank you one and all.
