Resoluation by a complainant company..

Cheque Victim's Lawyer. LUDHIANA (PB)

HI...

A Company registered under Companies Act, want to file a complaint Section 138 of the N I Act, on the basis of resoluation passed by BOD in someone's favor and same document is going to be used as power of attorney in court. No separate SPA/GPA is prepared in someone's favor to file that complaint.

Is it sufficient legally?

Thanks..... 

 
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ADVOCATE sardarsena@gmail.com

If you are accused than easy to win the case.

 

cases filed by un natural persons such as partnerships, companies particularly in cheque bounce cases it is most powerful and legal defense upheld by all High courts and even SC.

 
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Cheque Victim's Lawyer. LUDHIANA (PB)

Hi Santosh Ji...

Pl give me such judgements by SC & HC.

Thanks..

 

 
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advocate.dma@gmail.com

If the purpose of the resolution is to authorize such person for this case then no separate SPA is required.. But please make sure that this person is aware of transactions in his personal capacity...if not then affidavit should be suitable (like giving from record) or some other witness can be roped in like accountant, sales man, delivery department etc...

 
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Cheque Victim's Lawyer. LUDHIANA (PB)

Trivedi Ji...

There is requirement in Companies Act that there must be minimum two directors who must sign and pass an resolution, to authorize one director to appoint a attorney holder to initiate criminal case on behalf of company. Director is an agent/trustee of company, he alone cannot further delegate his authority without any authorization by resolution in his favor.  But complainants filing and courts are taking cognizance on the basis of simple resolution signed by one director, authorizing one particular person to act on behalf of company, even without executing/notarizing separate POA in his favor.  

Is it legal ?

 
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advocate.dma@gmail.com

See if below order of SC helps......I am of the opinion that a very fine point with respect to Power of Attorney is hopelessly missed by the trial courts, my opinion is that any body with some authority  should be able to initiate the criminal case....but anybody cannot be authorized to give evidence on behalf of a person or a Prop firm or a company by any instrument. This order is very clear...it follows the Bhojwani order of the SC...which was somewhat diluted by MMTC order.

 

 

A.C. Narayanan vs State Of Maharashtra & Anr on 13 September, 2013

23) In the light of the discussion, we are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the N.I. Act. An exception to the above is when the power of attorney holder of the complainant does not have a personal knowledge about the transactions then he cannot be examined. However, where the attorney holder of the complainant is in charge of the business of the complainant-payee and the attorney holder alone is personally aware of the transactions, there is no reason why the attorney holder cannot depose as a witness. Nevertheless, an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint. On this count, the fourth question becomes infructuous.

 

26

v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.

 

 
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