OFFENCE U/S 138 OF NI ACT

practicing advocate

NI act complaint was filed the deceased MD of the pvt., ltd., Co., during the pendency of the case MD died and another director was authorized to conduct the case.  The new complainant has not produced Form No:32 to show his appointment as director and not produced any books of accounts to show that accused had availed a loan.
New complainant has produced the copy of the resolution to show that he is authorised to conduct the case.
IN my opinion form no:32, books of accounts and books of resolution is necessary, otherwise complaint is not maintainable.
If any rulings of the supreme court kindly post it.
Thanks.

 
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Legal Adviser

Mr. Rajiv,

The company being legal entity/person never dies. Hence form 32 is not necessary to Make

the case U/sec 138 NIACT maintanable. Books of account etc. may be one of the fact to draw

the legal presumption of consideration. No ruling will help you on this count only.

Thanks.

Ayub S.Pathan, Legal Adviser, Mah. State. CID,Pune.


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Retired

Is a formal resolution necessary authorising a director to represent the company in 138 case?


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Asst, Manager-Legal

Yes Company being legal entity/person never dies, any person could make representation before the court that subject to the board resolution or authorization by the Company. Even Company Secretary could make representation on behalf of the company and Hon’ble Supreme Court also held that whereas the 138 matters Company can appoint any one of its employee to represent the complaint with capacity of resolution or authorization.

 

Hence form 32 may not be necessary. I thing complaint is maintainable in the eye of law and need not to produce any books, resolution is enough to conduct the case.
In other hand what new complainant has to do that he has to produce the resolution passed by other board of directors to show he is the new MD of complaint Company (discretion to the court).
     

 

Please note that separate resolution is not required authorizing the MD to represent the company in 138 cases, because he will be ultimate controller over the Company and he will be the held responsible for day to day business/responsibilities.     

 


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POWER OF DEFENSE IS IMMENSE

Fram leading questions and obtain series of yes or no.

Books and other reilied documents essential .

Refer  SC case delevered by the Judges  Shri R.V.Ravindran and Shri J.M.panchal., on 16th December 2008 confirming the aquital in NI 138 case by JMFC karnal in CC 178 of 2001.


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Retired

Can a company director, without authorisation from the board, file a 138 case (I am not talking of MD) simply because he is a director?

 
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POWER OF DEFENSE IS IMMENSE

For normal course of buisness of co no resultion necessary.

 
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Retired

My specific query is :

For filing a case under 138, does a director need authorisation in the form of formal resolution of the company to file the case. 

Normal course is OK.

 
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SIR, I HAVE RECEIVED A SUMMON NOTICE OF US 138, I LEAVED IN KOLKATA BUT GOT THE NOTICE FROM KARNATAKA WHAT SHOULD I DO ?

 
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POWER OF DEFENSE IS IMMENSE

You have to face the trial, engage a local advocate. Send all the copies of the case we will give you line of action.

 
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