1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO.195 OF 2010 IN CRIMINAL MISC. APPLICATION NO.100 OF 2010 The Canacona Urban Co-operative, Credit Society Limited, Having its head office at Canacona, Represented by its recovery officer, And power of attorney Holder, Shri Vasant Devidas, r/o. Mukund, Agonda, Canacona, Goa. …. Applicant V/s Shri Dhananjay Mahadev Deesai, Son of Mahadev Dessai, Businessman, r/o. H.No.313/2, Palolem, Canacona, Goa. …. Respondent Mr. P.A. Kamat, Advocate for the Applicant. Mr. Shivan Dessai, Advocate for the Respondent. CORAM : N.A. BRITTO, J. DATE : 19th OCTOBER, 2010 ORDER : Heard. 2. The first application has been filed by the applicant/complainant for grant of leave to appeal against judgment dated 25/01/2010 of the learned Additional Sessions Judge, Margao 2 by which the respondent/accused has been acquitted under Section 138 of the Negotiable Instruments Act, 1881. The second application is filed u/s 391 of the Code, for leave to produce resolution dated 01/12/2007 3. The respondent/accused was initially convicted by the learned JMFC, Canacona by judgment dated 31/08/2009 in CC No.65/OA/NI/2008. The case of the applicant/complainant was that the accused had given a cheque dated 7/04/2008 for `1 lac drawn on Syndicate Bank, Canacona, towards the discharge of the liability of the loan taken by him from the complainant. The complainant admittedly, is a Co-operative Society. 4. The said cheque when presented for payment was returned dishonoured for insufficient funds and a legal notice sent thereafter remained without being complied with. On behalf of the complainant, one Vasant Devidas was examined pursuant to a power of attorney given by Shri Amar Gaonkar, the chairman of the complainant Society. The said power of attorney authorised the said Vasant Devidas to act, file complaints and depose on behalf of the complainant. 3 5. The respondent/accused before the learned Additional Sessions Judge, in appeal, raised the issue of authority of the said Vasant Devidas to file the complaint or depose on behalf of the complainant. This objection was taken, relying upon the decision of this Court in the case of Mrs. Alka Toraskar V/s. State of Goa & Ors. (2007 (1) GLR 159). That objection was sought to be explained by stating that the authority of Vasant Devidas to file a complaint and depose on behalf of the complainant came from the power of attorney executed by the said Chairman of the Society and which was produced in the case at Exhibit 22 and which according to the complainant had authorised the said Vasant Devidas to file the complaint as well as to depose on behalf of the complainant. 6. Admittedly, resolution No.3, now sought to be produced did not authorised the Chairman Shri Amar Rama Gaonkar to execute any power of attorney in favour of Vassant R. Devidas, though it is stated therein that he was so authorised. Resolution No.3 authorised Vassant Devidas to file criminal complaints. The learned Additional Sessions Judge noted that the said power of attorney authorised the said Vasant Devidas to appear and act on behalf of the complainant, to file proceedings under Section 138 of 4 the Negotiable Instruments Act, sign and verify the complaints and to depose on behalf of the complainant. The learned Additional Sessions Judge also noted that the said power of attorney had a recital which said that at a meeting held on 1/12/2007, the executant (chairman) was authorised to execute power of attorney in favour of Shri Vasant Devidas. However, the learned Additional Sessions Judge noted that the complainant is a Co-operative Society, a legal entity, governed by the Maharashtra Co-operative Societies Act, 1960 as applied to the State of Goa. Taking note of Section 72 of the said Act, the learned Additional Sessions Judge noted that the final authority of every society vests in the general body of members and under Section 73 of the said Act, the management of the Society vests in the Committee constituted in accordance with the said Act, Rules and Byelaws and therefore only the Committee could represent the society and in case the rules and bye-laws of the society authorised the Committee to delegate its power to the chairman or authorize the chairman to sub-delegate the powers as chairman, Shri Amar Gaonkar could have appointed Shri Devidas as power of attorney to act, file complaints and depose on behalf of the complainant. The learned Additional Sessions Judge noted that although in the recital it was stated that the executant Shri Amar is authorised to execute a 5 power of attorney in favour of Shri Vasant Devidas, the complainant had not produced bye-laws to show that committee had authority to delegate its powers in favour of its chairman and/or that the chairman had authority to sub-delegate the powers conferred on him in favour of Shri Devidas. The learned Additional Sessions Judge also held that in the absence of any proof to that effect it would not be possible to hold that committee had any authority to delegate its powers to Shri Amar as chairman and/or that Shri Amar had any authority to sub-delegate the powers in favour of Shri Devidas. There is also no ocular evidence to that effect. Merely producing a power of attorney executed by the Chairman will not be sufficient to hold that the complainant had authorised Shri Devidas to file a complaint, to sign it and to depose on behalf of the complainant. 7. The complainant has now filed an application dated 11/03/2010 purporting it to be an application filed under Section 391 of the Code of Criminal Procedure, 1973. By the said application, the complainant seeks the production of copy of resolution No.3 dated 1/02/2007 which according to the complainant authorised the said Shri Vasant Devidas, Recovery Officer of the complainant-Society, inter alia, to file criminal 6 complaints or civil suits or to file proceedings under Section 138 of the Negotiable Instruments Act, for recovery of the amount on cheques with interest at prevailing rates, etc. In para 7 of the application on behalf of the complainant it is stated that the complainant had no occasion to produce the said resolution and authority of the witness was not challenged and the witness was not asked about the resolution. 8. The respondent-accused opposing the said application has submitted that has been acquitted on the ground that the witness examined on behalf of the complainant was not authorised to depose and the complainant is seeking to remedy the said illegality by resorting to the present application filed belatedly. 9. On behalf of the respondent/accused, it is submitted that the complainant had sufficient opportunity to produce the said resolution but the complainant took the risk of not producing the same and the accused was acquitted on the ground of non- production of the resolution and the complainant is now seeking to plug the loopholes and this is not permissible. It is also stated that the complainant being Co-operative Credit Society cannot seek any concession. The respondent has also disputed the authenticity and 7 the genuineness of the said resolution dated 1/02/2007. 10. Shri Kamat, the learned Counsel on behalf of the Applicant/complainant submits that in the demand notice the complainant had referred to the power of attorney and the accused had not replied to the said notice. Learned Counsel further submits that non-production of the said resolution is a curable defect and therefore the applicant ought to be permitted by this Court, in the interest of justice, to produce the said resolution and grant leave to appeal. Learned Counsel further submits that no suggestion was put to the complainant's witness the said Vasant Devidas that he had no resolution passed in his favour authorising him either to file the complaint or depose on behalf of the complainant. Shri Kamat then submits that the resolution dated 01/12/2007 was not produced before the learned Additional Sessions Judge on the basis of wrong advice, but learned Counsel submits that it is the interest of justice which now requires that the said resolution is allowed to be produced. 11. Shri Dessai, the learned Counsel appearing on behalf of the respondent/accused submits that the accused had challenged the authority of the said Vasant Devidas in cross-examination and in 8 this context learned Counsel has referred to the suggestion put to the said complainant's witness Shri Vasant Devidas that he was not authorised to issue legal notice and that the complaint filed was not as per Section 138 of the Negotiable Instruments Act. Learned Counsel submits that the authority of the said Vasant Devidas was sufficiently challenged and yet the complainant did not produce the said resolution. Both the learned Counsel have placed reliance on some decisions to which I will now make a reference. 12. Shri Kamat has placed reliance on an unreported judgment of this Court dated 15/06/2010 in Criminal Misc. Application No.171/2002 in the case of M/s. Globe Trotters International V/s. Joseph Fernandes & Anr., in which this Court was pleased to grant leave to the complainant to produce a receipt and a letter dated 24/03/2000 by which the liability was acknowledged by the accused. The explanation given in that case was that the said documents were discovered in the file collected from the trial Court advocate while the case was being discussed with appellate Court advocate and that explanation found favour with this Court. This Court in the said judgment dated 15/06/2010 had also relied upon two decisions of the Apex Court. One is in the case of Zahira Habibulla S. Sheikh and Anr. V/s. State of Gujarat & 9 Ors. (AIR 2004 SC 346) wherein the Apex Court, inter alia, had observed that: “Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in the trial could be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.” The other was the case of Rajeswar Prasad Misra V/s. State of West Bengal (AIR 1965 SC 1887) wherein the Apex Court had observed that: “The Code gives power to the Appellate Court to take additional evidence, which, for reasons to be recorded, it considers necessary. Thus the Code gives power to the Appellate Court to order one or the other, as the circumstances may require, leaving a wide discretion to it to deal appropriately with different cases. Additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power has to be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must not, however, be received in such a way as to cause prejudice to the accused, as for example, it would not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless 10 the requirements of justice dictate otherwise.” 13. The case of VPK Urban Co-operative Credit Society Limited V/s. Shri Santosh Datta Pednekar (2009 (2) Goa L.R. 702), stood on its own facts and therefore is not applicable to the facts of the case at hand. In that case on Ratna Amonkar had filed the affidavit in evidence on the basis of a resolution as well as authority letter. Resolution dated 10/06/2007 and authority letter dated 11/07/2007 were produced and it was held that the authority of the said Ajay Kuncolkar was not questioned in the course of the evidence of the complainant's witness the said Ratna Amonkar and therefore there was no occasion for the said Ratna Amonkar to have produced the said resolution dated 10/06/2007 or letter of authority dated 11/07/2007 and had the accused disputed the authority of the said Kuncolkar then the complainant might have been required to produce the resolution in favour of the said Kuncolkar and as long as there was no challenge to his authority, the complainant was not required to produce the resolution dated 16/09/2006. 14. In the case of Mamatadevi W/o. Prafullakumar Bhansli V/s. Vijaykumar Mamraj Agrawal (2008 Cr.L.J. 970), this Court 11 had occasion to refer to the case of Rambhau & Anr. V/s. State of Maharashtra (2001 (4) SCC 751), wherein the Apex Court had observed that the powers under Section 391 of the Code of taking further evidence or directing it to be taken ought not to be received in such a way so as to cause any prejudice to the accused and it should not be a disguise for a retrial or to change the nature of the case against the accused. Rajeswar Prasad Misra V/s. State of West Bengal (supra) was referred to. The Apex Court in this case has held that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it, and further held that the Court was candid enough to record however that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard. The Apex Court also noted that no set of principles can be set forth for such an exercise of power under Section 391, and that would depend upon the fact situation of the matter having due regard to the concept of fair play, justice and well-being of the society. But since Section 391 forms an exception to the general rule that an appeal must be decided on the evidence which was before the trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends 12 of justice. It is not to fill up the lacuna but to subserve the ends of justice and that Section 391 was thus akin to Order 41 Rule 27 of Civil Procedure Code. Referring to Rule 27, Order 41, this Court observed that ordinarily, there is a clear bar for admitting additional evidence in appeal. Rule, however, in certain cases allows such party to produce the evidence. The first ground is when trial Court has refused to admit that evidence and second is inspite of exercise of due diligence, it was not within knowledge and could not be produced. 15 In M/s. M.M.T.C. Ltd. & Anr. V/s. M/s. Medchl. Chemicals & Pharma (P) Ltd. & Anr. (2002 ALL MR (Cri) 230) the Apex Court has stated that although initially there was no authority, still the Company can, at any stage, rectify that defect and at a subsequent stage the Company can send a person who is competent to represent the company. That was the case where the proceedings were quashed by the High Court at the initial stage and it was held that the High Court was not justified in entertaining and accepting a plea that there was no debt or liability and thereby quashing the complaint. 16. In the case at hand, the authority of Vasant R. Devidas who 13 filed the complaint on behalf of the complainant society came from the said resolution no.3 dated 01/12/2007 which was not at all produced and this inspite of the fact that the complainant's witness was alerted in cross-examination that he had no authority to issue legal notice. The issue of lack of authority was again taken on behalf of the accused before the learned Additional Sessions Judge. The said Vasant Dessai who deposed on behalf of the complainant could have produced the said resolution before the learned trial Court as well as before the learned Additional Sessions Judge and the only explanation which has been put forward before this Court at present is that the complainant was not advised to produce the same either before the learned trial Court as well as the first appellate Court i.e. the learned Additional Sessions Judge. The accused has taken a benefit of the said flaw in the case of the complainant. Allowing the complainant to produce the said resolution at this stage would necessarily involve remanding the case for retrial after the accused has been acquitted to enable the complainant to produce the said resolution. All that is stated in the application is that the applicant had no occasion to produce the said resolution. That averment cannot be accepted since on the facts of the case the authority of the witness to depose on behalf of the complainant was sufficiently challenged not only before the 14 learned trial Court but also before the learned Additional Sessions Judge and the complainant made no efforts to produce the said resolution. The Complainant was the payee and the Complaint was filed by the said Devidas. Complaint could not have been filed by the said Devidas without the said resolution being produced. The reason for non production cannot be accepted. Complainant has been obstinate in not producing the resolution, inspite of the authority of the said Devidas being challenged in cross examination. In the circumstances, therefore, application to produce the said resolution needs to be rejected. 17. Consequently, the view held by the learned additional Sessions Judge cannot be faulted. In the circumstances, both the applications filed on behalf of the complainant are hereby dismissed. N.A. BRITTO, J. NH/-