cra233.03 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.233 OF 2003 Mahavir Urban Cooperative Society Ltd., Navi Peth, Jalgaon, Through Recovery Officer, Bhaskarrao Ramkrishna Patil, Age-62 years, Occu:Service, Resident of Jalgaon. ...APPLICANT. VERSUS 1) Sou. Mayavati Laxmichand Gala, Age-Major, Occu:Business, C/o- V.T. Thosar, Plot No.124, Adarshnagar, Jalgaon. ..(ORIGINAL ACCUSED) 2) State of Maharashtra ...RESPONDENTS. ... Shri.K.C. Sant Advocate for Applicant. Shri.L.V. Sangit Advocate for Respondent No.1. Smt.Y.M. Kshirsagar, A.P.P. for Respondent No.2. ... CORAM: SHRIHARI P. DAVARE, J. DATE : 14TH JUNE, 2011. cra233.03 2 PER COURT : 1. Heard learned counsel for the parties. 2. This is an Application preferred by the Applicant (original complainant) seeking leave to file Appeal challenging the Judgment and Order dated 1st November, 2002 rendered by the Judicial Magistrate, First Class, First Court, Jalgaon in Summary Criminal Case No.829 of 1997, thereby acquitting the Respondent (original accused) for the offence punishable under Section-138 of the Negotiable Instruments Act. 3. I have perused the impugned Judgment dated 1st November, 2002 and the depositions which have been made available by the learned counsel for the Applicant, with the assistance of learned counsel for the parties. 4. On perusal of the impugned Judgment dated cra233.03 3 1st November, 2002, it appears that the learned trial Judge has observed that though the offence is conclusively proved against the accused, but the accused cannot be convicted for the reason that the filing of the complaint was by an unauthorized person, when the complaint itself was not maintainable, there was no other alternative but to acquit the accused and accordingly, the accused came to be acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act. To arrive at the said findings, the learned trial Judge has referred to the Resolution No.10 dated 18th June, 1997 at Exhibit 39 and same has been reproduced in the impugned Judgment and thereafter the learned trial Judge observed that the said Resolution is silent about the delegation of power to Shri. Bhaskarrao to institute the complaint on bouncing of cheques of defaulter, and further learned trial Court observed, that if it is so, how come that Bhaskarkrao is authorized to institute the present cra233.03 4 complaint on 1st October, 1997, when Bhaskarrao was not authorized by the Management of the society to institute the present complaint. The learned trial court further observed that it cannot be said that he steps into the shoes of payee of the cheque. When he is not authorized by the Resolution No.10, Exhibit 39, he cannot be treated as the payee who is the society, and consequently the accused came to be acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, as afore-stated. 5. On the aforesaid background, Shri. Sant, the learned counsel for the Applicant submitted that the complainant has made averment in the examination in chief that he was authorized to file the complaint, but there is no cross examination of the complainant in that respect. He also canvassed that in the impugned Judgment, Point No.7 framed by the learned trial Court in respect of maintainability of the complaint in cra233.03 5 law, but the said point nowhere indicated that maintainability in question pertains to authorization. It is further canvassed by the learned counsel for the Applicant that the offence against the accused was conclusively proved on merits, as observed by the learned trial Court, but the accused came to be acquitted on the technical ground of alleged non-authorization of filing the complaint, which will lead to miscarriage of justice. 6. Apart from that, learned counsel for the Applicant submitted that the alleged so-called defect of non-authorization, is a curable defect and matter can be remanded back and the complainant can be given opportunity to file the requisite Resolution, authorizing the complainant to file the complaint and the learned counsel for the Applicant relied upon the observations made by the Supreme Court in the case of M/s. M.M.T.C. Ltd. and another vs. M/s. Medchl Chemicals and cra233.03 6 Pharma (P) Ltd. and another, A.I.R. 2002 Supreme Court, 182. Head Note (A) of the Judgment cited supra, reads as under: "(A) Negotiable Instruments Act (26 of 1881), S.142, S.138 - Cheque dishonour complaint- can be made by payee or holder in due course of cheque - Complaint lodged in name and on behalf of appellant company who is payee of cheques- Is maintainable - Fact that complaint was lodged by Manager or Deputy General Manager who had not been authorised by Board of Directors to sign and file complaint on behalf of company, - Cannot be a ground for quashing complaint, since defect is curable." 7. Shri. Sangit, learned counsel for the Respondent No.1, opposed the aforesaid arguments vehemently and submitted that the alleged cra233.03 7 Resolution No.10, Exhibit 39, is dated 18th June, 1997 and the very contents and the text of the said Resolution clarifies that the said Resolution pertains to the cases of Section 138 of the Negotiable Instruments Act, which have been already filed, but the present case was instituted on 1st October, 1997, and therefore, the said Resolution No.10 dated 18th June, 1997, will not be applicable in the instant case and therefore, it is submitted that the learned trial Court has rightly arrived at the conclusion that the complaint was filed by an unauthorized person and therefore, the said complaint was not maintainable and therefore, consequently, acquitted the accused, and no interference therein is called for. 8. Learned counsel for the Respondent further canvassed that the complainant was not agent of the society who was duly authorized, and the very Resolution on which the complainant cra233.03 8 relied upon, nowhere authorizes the complainant to file the complaint and therefore, there is no question of remanding the matter and consequently, there is no question of curing the defect by filing fresh Resolution authorizing the complainant, as canvassed by the learned counsel for the Applicant. In the said context, learned counsel for Respondent, relied upon the observations in the case of Mamatadevi Prafullakumar Bhansali vs. Pushpadevi Kailashkumar Agrawal and another, 2005(2) Mh. L.J. 1003. Para 6 and Para 20 of the Judgment cited supra, read as under: "6. The learned Advocate for the applicant made submissions in support of the petition which can be summarized in the context form as follows: (i) That the cognizance of an offence under section 138 is a matter prescribed by special cra233.03 9 enactment, and the special procedure prescribed under section 142 of the Negotiable Instruments Act is a complete code in itself and needs to be followed scrupulously. (ii) The non-obstante clause employed in section 142 of the Negotiable Instruments Act creates a mandatory duty on the Court as to exercise of the power of Court of taking cognizance as to compliance of certain mandatory requirements as to the person who shall file a written complaint, i.e. the "complainant" him/herself and none else, and it needs to be complied with. (iii) The mention of word "payee" by the very fact, admits no other person than the payee to be a complainant at whose behest the cognizance would be permissible. cra233.03 10 (iv) The contents of complaint which refer to the description of the power of attorney, as a person in whose presence entire transaction taken place, can at the most be a witness and therefore, a complaint filed by the power of attorney is no complaint in the eye of law and the criminal law cannot be put into motion by such persons. (v) Mere signing of the complaint by a payee is not sufficient compliance. (vi) When law requires a particular thing to be done in a particular manner or the procedure to be followed in a particular manner which ought to be so followed and in no other way. The learned Advocate Shri Saboo does not dispute that procedure to be adopted after presentation of complaint namely that it is cra233.03 11 governed by Criminal Procedure Code only, and according to him, only restriction that is created by section 142 is in relation to the complaint being filed by the payee or holder in due course. 20. Thus, while the payee as a person named in the instrument, and when the instrument is payable to bearer or order the person named or a person in whose name the endorsement is made, or even a bearer if endorsement is in blank, becomes entitled to money covered thereby. Thus, if the scheme of N.I. Act is read coherently, the idea is of empowering of title holder of the instrument entitled to money named therein to receive money, who in turn ought to be entitled to file the complaint for dishonour under section 138 read with section 142 of N.I. Act. Holder of a cheque, which is dishonoured on presentation is the person who cra233.03 12 is affected or injured, and is entitled to file a complaint under section 138 read with section 142 of N.I. Act. . The Negotiable Instrument or a cheque being a part of mechanism or equipment in the trade and business, the identification of person entitled to file the complaint is thus to be by the title thereof, and being a matter of trade and commerce, a person entitled to authorise some other person to act on his behalf should ordinarily be entitled to empower other person to file the complaint. It shall be clear from the definition of "agency" given under section 27, except the part 2 and 3 of the definition, that every person duly constituted as an agent, can do the acts of making, drawing, accepting, endorsing, delivering and negotiation of a bill of exchange. Thus when an cra233.03 13 "agent" who is duly authorised even may be based on a power of attorney could be competent can transact relating to all matters relating to Negotiable instruments." 9. Accordingly, the learned counsel for the Respondent No.1 submitted that there is no substance in the present Application and same is devoid of merits and therefore same be rejected. 10. Considering the rival submissions advanced by the learned counsel for the parties and also considering the very text of Resolution No.10 dated 18th June, 1997, Exhibit 39, it is apparently clear that the said Resolution pertains to the cases of Section 138 of the Negotiable Instruments Act, which have been already filed, and the said Resolution does not pertain to the cases which were to be filed later on. Keeping in mind the said very contents of the Resolution and coming to the present case, it is apparent that cra233.03 14 the present case was filed on 1st October, 1997 and therefore, the said Resolution cannot be made applicable to the instant case and cannot come to the rescue of the complainant in the present case. Hence, the learned trial Court has rightly observed, that the said Resolution is silent about the delegation of power to Shri. Bhaskarrao to institute the complaint on bouncing of cheques of defaulter, and further rightly observed, that filing of the present complaint was by an unauthorized person and when the complaint itself is not maintainable, there is no alternative but to acquit the accused, and consequently, acquitted the accused, rightly, and no interference is called for in the said findings in the appellate jurisdiction. 11. Coming to the argument canvassed by the learned counsel for the Applicant that the aforesaid defect is a curable defect and the Judgment of the Apex Court, in that respect, cra233.03 15 relied upon by the Applicant, undisputedly, the trial has already been over and the accused has been acquitted and further the Judgment relied upon by the learned counsel for the Applicant, apparently, pertains to the proceeding in respect of quashing of complaint under Section 482 of the Code of Criminal Procedure, where the proceeding was pending, and the said finding has been given by the Apex Court, that defect is curable in the proceeding of quashing the complaint, which was pending. So is not position in the instant case, and therefore, the said case cannot be made applicable to the present case of the Applicant herein, and consequently, I am not inclined to accept the arguments canvassed by the learned counsel for the Applicant, in that respect. 12. In the circumstances, the view adopted by the learned trial Court, after scrutinizing and assessing the evidence on record, while acquitting the accused, is a possible view to be adopted, and cra233.03 16 same does not appear to be perverse, therefore, no interference is called for in the appellate jurisdiction and the present Application deserves to be dismissed. 13. In the result, the present Criminal Application, which sans merits, stands dismissed and leave to file Appeal is refused. [SHRIHARI P. DAVARE, J.] asb/JUNE11/cra233.03