1 Cri-Appeal-495-496-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 495 of 2011 OF 2011 WITH CRIMINAL APPEAL NO. 496 OF 2011 M/s. Complus Computer Services Private ) Limited, a company registered under the ) Companies Act, 1956, having its office ) at Shop No.22, Deewan Centre, S.V.Road, ) Jogeshwari (West), Mumbai 400 102. ) through its director jaydas Devlay. ).. Appellant (Orig.complainant) Vs. 1. The State of Maharahtra ) through Senior Inspector of Police, ) Oshiwara Police Station, Mumbai. ) 2. Urvash Sassicant, the Proprietor of ) The Favourite store and Gurukul ) Society for Human Resources and ) Development, 7/283, Mahadev mandir,) Near Vegetable Market, Moti Daman,) Daman-396220, and also having ) address at B-201, Prajapati Park, ) Opp. Balaji Garden, Sector 11, ) Koperkhairne, New Mumbai. )..Respondents (Orig. accused) Mr.Shailendra Singh i/b. Anand A.Pande,Advocate, for the appellant. Mr.Y.M.Nakhwa, APP,for the respondent No.1 State . CORAM: J.H.BHATIA,J. DATE : 6th September, 2011. JUDGMENT: 2 Cri-Appeal-495-496-11.sxw 1. Both these appeals may be disposed of by this common Judgment as they arise out of dismissal of two complaints filed by the appellant under Section 138 of Negotiable Instruments Act. 2. Appeal No.495/2011 is filed against acquittal under Section 138 of Negotiable Instruments Act in Criminal Case No.1653/SS/2008, while Criminal Appeal No.496/2011 is filed against acquittal in Criminal Case No.550-SS-2008 3. According to the complainant/appellant, it is a Private Limited Company registered under the Companies Act and dealing in business of computers and allied accessories. The respondent no.2/accused was carrying on business of giving training in computer at Daman and he had hired several computer sets and accessories from the complainant. In Criminal Case No. 1653/SS/2008, the accused/respondent No.2 had issued two cheques of Rs. 70,000/- each on 27.2.2008 and 27.3.2008 respectively towards payment of hire and interest thereon. Both these cheques were presented to the payee Bank Citizen Credit Co-op. Bank Ltd., Moti Daman Branch through Bank of Baroda, Chakala Branch, Mumbai. The cheques were returned unpaid on 10.6.2008 with the remarks "funds insufficient". The complainant had issued statutory notice to the accused at his two different addresses making demand of the cheque amounts. 3 Cri-Appeal-495-496-11.sxw One notice was returned unserved with the remarks "not known". Acknowledgment of service of notice at another address was not returned. No payment was made by the accused/respondent. Therefore, the complaint was filed under Sec. 138 of Negotiable Instruments Act. 4. In second case, being Criminal Case No.550-SS-2008, the accused had issued three cheques of Rs.70,000/- each dated 27.11.2007, 27.11.2007 and 27.1.2008. All these three cheques were duly presented to the drawee Bank, but were returned dishonoured for want of sufficient funds. The notice making demand of payment was sent and, according to the complainant, it was duly received, but no payment was made within the stipulated period. Therefore the complaint was filed. 5. On behalf of the complaint, one Jaydas Devlay, Director of the complainant-company wass examined as a witness. The learned trial Court held that in the complaints, there was no mention or averment that said Jaydas Devlay was authorised by the company to file the complaints and to give evidence. A photocopy of a resolution authorizing him to look after all the legal matters of the company was produced. However, as the original resolution was not produced and proved before the Court, the trial Court refused to place reliance on the 4 Cri-Appeal-495-496-11.sxw photocopy holding that mere production of photocopy does not prove the passing of resolution authorising Mr. Jaydas Devlay to file complaint and to give evidence before the Court. 6. In Criminal Case No.1653/SS/2008, the learned magistrate found that there was no evidence about service of statutory notice and that the copy of the notice, which was submitted before the Court by the complainant and which was sought to be proved, did not bear signature of anybody and, therefore, it was not a proper notice. At the request of the learned Counsel for the complainant/appellant, I have personally perused the record of the trial Court. It shows that one notice which was sent at Koparkhairne, Navi Mumbai address was returned by the postal authorities unserved with the remarks "not known" indicating that address was not correct and,therefore, there was no service. On opening the envelope, I find that the notice bears the signature of the Advocate, Therefore, the notice could not be treated invalid on the ground that it was not signed. It is possible that the copy which was presented before the Court was not duly signed, but the original was signed. However, mere signing of the notice would not be sufficient . What is required is the service of the statutory notice. On one address notice was not served. Notice was allegedly sent on another address also. However, it was neither returned back by the postal authority or any 5 Cri-Appeal-495-496-11.sxw acknowledgment of receipt of notice was sent by the postal authority. Therefore, except that the notice was sent by Regd. Post, there was no evidence about service. The complainant could have secured a certificate of service from the postal authority and could have also examined the concerned postman to prove that the notice was actually served. No such attempt was made on behalf of the complainant. In view of this, it must be held that the notice was not properly served and if notice was not served, the consequences under Section 138 also will not follow. 7. In second case, being Criminal Case No.550-SS-2008, the acknowledgment was produced to show that the notice was served. However, the accused denied that he had received the said notice. On comparison of the signature of the accused with the signature of the recipient of that notice, it becomes clear that the notice was not received by the accused. It is not known who had received that notice. Nobody was examined on behalf of the complainant to prove who had received that notice. 8. In view of the facts and circumstances noted above, even if this court may not agree with the trial Court that the notice was not proper, merely because copy of the notice does not bear signature of the Advocate, still other facts and 6 Cri-Appeal-495-496-11.sxw circumstances noted above, go to show that neither resolution authorizing Jaydas Devlay to file complaint and to give evidence was proved nor there is evidence to show that the notice was served on the accused. 9. The learned Counsel for the appellant contended that the complaint could be filed by the payee or holder in due course of cheque and if the company is the payee, the complaint can be filed in the name of the payee company and merely because the complaint was lodged by an officer or director of the company, who was not duly authorised by the Board of Directors to sign the complaint, the complaint cannot be dismissed on that ground. In support of this, he placed reliance upon M/s. M.M.T.C. Ltd. and another vs. M/s. Medchl Chemicals and Pharma (P) Ltd. & Anr. AIR 2002 SC 182. In fact, in that case, the proceedings under Sec. 138 of Negotiable Instruments Act were sought to be quashed. The Supreme held that even though initially, there was no authority, still the company can, at any stage, rectify that defect. In my considered opinion, that authority will not be applicable to the facts of the present case because in this case, the accused was duly tried after recording his plea under Sec. 138 of Negotiable Instruments Act, evidence was led on behalf of the complainant, the statement of the accused under Sec. 313 was recorded and after hearing the final arguments, the trial Court passed the final judgment of acquittal. Till the end of 7 Cri-Appeal-495-496-11.sxw the trial, no attempt was made by the complainant to produce the original resolution authorising said Jaydas Devlay to file complaint and to give evidence. The learned Counsel contends that even Articles of Association of the Company authorises the Managing Director or any director to file a complaint and to lead evidence in any criminal matter. However, admittedly, the Articles of Association were also not produced before the trial Court. This point is raised for the first time during oral arguments before this Court. 10. It is settled position of law that if on same facts and evidence, two different views are reasonably possible, the appellate Court will not interfere in the view taken by the trial Court while acquitting the accused. Taking into consideration the facts and circumstances of these cases, it is impossible to come to conclusion that the view taken by the trial Court was not reasonably possible. Therefore, I find no valid reason to interfere. In my opinion, the Appeals cannot be admitted and are liable to be dismissed. 11. For the aforesaid reasons, both the Appeals stand dismissed. (J.H.BHATIA,J.)