1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO. 747 OF 2009 Shri Pramod Kumar Jain ...Appellant. Versus The State of Maharashtra & Anr. ..Respondents. --- MR. A.H.H. Ponda, for the Applicant. Mr. Saeed A. Khan i/b M/s H & M Legal Associates, for the Respondents. Mrs.A.A. Mane, APP for the State. --- CORAM : SMT.ROSHAN DALVI, J. DATED : 25TH NOVEMBER, 2009 P.C.: 1. This application is for leave to appeal against the acquittal of the accused in the Court of Special Metropolitan Magistrate, Small Causes Court, Mumbai on 20.3.2009. This appeal needs to be disposed of only by passing directions. 2 Hence, Leave to appeal is granted. Both parties are heard. By consent of Advocate for Respondent No.2, the appeal is disposed of. 2. The Criminal Application filed under the section 138 of Negotiable Instruments Act. The complaint came to be filed on 22.12.2000. It is numbered as Case No.737/S/2001. The complaint was regarding dishonour of 5 cheques of Rs.2,00,000/- each issued in September and October, 2000. The Complainant/Applicant herein filed affidavit of examination-in-chief on 21.2.2009. He tendered the documents in the court. The admissibility of the documents referred to in affidavit came to be considered. The original cheques of Rs.2,00,000/- each, notice of dishonur, copies of the demand notice and the registered slips came to be exhibited. The remaining documents were not exhibited as they were Xerox copies and were not proved even in secondary evidence. Two of these documents are the resolutions dated 7.11.2000 and 25.10.2004. Copies of the board resolution came to be filed along with affidavit of examination-in-chief. The Minute Book of Board of Directors was not produced. The copies were not certified under the seal of the Company as true copies. The resolutions was simplicitor signed by the Chairman of the Company. 3 3. It may be mentioned that so soon as the Company passes its resolutions by the Directors in the board meeting of the Company, the resolutions are noted in the Minute Book of the Company. The certified extract of the Minutes Book containing resolutions certified to be true, under the seal of the Company, would be a document which can be admissible in evidence to show the authority as stated in the resolution. That was not shown. The Complainant was cross examined on 3.3.2009. The statement under section-313 of the Code of Criminal Procedure of the accused was also recorded on that date. Thereafter, the judgment was rendered on 20.3.2009 and accused came to be acquitted. 4. The judgment dated 20.3.2009 has considered the lack of authority of the witness on behalf of the Company who filed the affidavit of examination-in-chief. A paragraph-3 of the judgment shows that the resolutions were not produced and copies are not exhibited. 5. An exception was taken that the witness has no authority to appear on behalf of the Company. For want of authority, the learned Magistrate in paragraph-10 of the judgment observed that the accused has rebutted the statutory presumption and the burden shifted to the Complainant to prove his authority which was not established by him. The observations with 4 regard to the rebuttal of the statutory presumption appear to be incorrect. The statutory presumption is in respect of the payment of consideration under the cheque. It has nothing to do with the authority of a person to represent a Company, which is a legal person, in court. Of course, the authority to appear by such person must be shown and proved to court. That can be done in the manner stated above. Hence, the case be remanded to the court of the Learned Magistrate for proceeding according to law. Learned Magistrate must allow the Complainant’s witness to show his authority to appear. The learned Magistrate may then consider the fact of rebuttal of the statutory presumption as to the passing of consideration on merits upon the defence of the accused. 6. The witness on behalf of the Complainant Company may lead further evidence, but, only with regard to his authority. However, the accused shall have the liberty to once again cross examine the Complainant’s witness on all aspects of the examination-in-chief. The accused shall have liberty also to lead the evidence of himself and any other witness. If upon the cross examination or upon any further evidence the accused might lead, the statutory presumption gets rebutted, the complainant shall be entitled to lead such further evidence upon the onus that will have shifted upon him. 5 Learned Magistrate shall consider the entire evidence and pass a fresh order. The Appeal is disposed of accordingly. (SMT.ROSHAN DALVI, J.)