Section 142(b) of the N. I. Act, provides that
notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), no Court shall take cognizance of
any offence punishable under section 138 except upon a
complaint, in writing, made by the payee or, as the case may be,
the holder in due course of the cheque. In the case of “Dale &
Carrington Invt. (P) Ltd. and Anr. Vs. P. K. Prathapan and Ors.”,
reported in [(2005) 1 SCC 212], the Hon'ble Supreme court has
observed that the Company being a juristic person, acts through
its Directors who are collectively referred to as the Board of14
Directors. An individual Director has no power to act on behalf of
a company of which he is a Director, unless by some resolution of
the Board of Directors of the company specific power is given to
him/her. In the present case, the complaint had been filed by the
company and was signed by Shri Tukaram Parab as constituted
attorney of the complainant. Section 54 of the Act provides that
save as otherwise expressly provided in this Act, a document or
proceeding requiring authentication by a company may be
signed by a director, the managing agent, the secretary or other
authorised officer of the company, and need not be under its
common seal. Thus, if as contended by learned counsel for the
complainant, what is produced as Exhibit 44 is just a true extract
of the resolution, then it could have been held to be legal. But
that is not the case. In his affidavit-in-evidence, Shri Tukaram
Parab (PW1) stated that he was the constituted attorney of the
complainant and had signed the complaint on behalf of the
complainant. In his examination-in-chief, inter alia, he stated
that he was producing the Board Resolution dated 12.12.2011.
What had been produced on record at Exhibit 44 was a notarised
copy of the Board Resolution, itself, passed at the meeting of
Board of Directors on 12.12.2011 and not any extract of the
Board Resolution. From the deposition of PW1, it can be seen
that the original of the said Board Resolution was shown to the
trial court and it was returned back to the PW1 and notarised
copy of the same was taken on record and marked as Exhibit 44.
Therefore, the said document named as Board Resolution was
not covered by Section 54 of the Act. By this Board Resolution at
Exhibit 44, the Director Mr. Chandrakant K. Gawas on behalf of
the complainant resolved that he himself as Managing Director
was authorised to execute power of attorney in favour of the
Consultant Mr. Tukaram Parab authorising him to represent the
Company in the Court of J.M.F.C. at Vasco and all other Courts
and to take all such steps as may be found to be in the interest
of the Company. In his cross-examination, PW1 deposed that
Chandrakant Gawas was the Managing Director of the
complainant and the other Director was Chitra Chandrakant
Gawas. Hence, there were only two Directors but only one of
them had signed the Board Resolution at Exhibit 44.
12. (a).- Section 193 of the Act provides as under:-
“193. Minutes of proceedings of general meetings
and of Board and other meetings.
(1) Every company shall cause minutes of all
proceedings of every general meeting and of all
proceedings of every meeting of its Board of
directors or of every committee of the Board, to be
kept by making within thirty days of the conclusion
of every such meeting concerned, entries thereof16
in books kept for that purpose with their pages
consecutively numbered.
(1A) Each page of every such book shall be
initialled or signed and the last page of the record
of proceedings of each meeting in such books shall
be dated and signed-
(a) in the case of minutes of proceedings of a
meeting of the Board or of a committee thereof,
by the chairman of the said meeting or the
chairman of the next succeeding meeting;
(b) in the case of minutes of proceedings of a
general meeting, by the chairman of the same
meeting within the aforesaid period of thirty days
or in the event of the death or inability of that
chairman within that period, by a director duly
authorised by the Board for the purpose.
(1B) In no case the minutes of proceedings of a
meeting shall be attached to any such book as
aforesaid by pasting or otherwise.
(2) The minutes of each meeting shall contain a
fair and correct summary of the proceedings
thereat.
(3) All appointments of officers made at any of the
meetings aforesaid shall be included in the
minutes of the meeting.
(4) In the case of a meeting of the Board of
directors or of a committee of the Board, the
minutes shall also contain-
(a) the names of the directors present at the
meeting; and
(b) in the case of each resolution passed at the
meeting, the names of the directors, if any,
dissenting from, or not concurring in, the
resolution.
(5) Nothing contained in sub-sections (1) to (4)
shall be deemed to require the inclusion in any
such minutes of any matter which, in the opinion
of the chairman of the meeting-
(a) is, or could reasonably be regarded as,
defamatory of any person;
(b) is irrelevant or immaterial to the proceedings;
or
(c) is detrimental to the interests of the company.
Explanation.- The chairman shall exercise an17
absolute discretion in regard to the inclusion or
non-inclusion of any matter in the minutes on the
grounds specified in this sub- section.
(6) If default is made in complying with the
foregoing provisions of this section in respect of
any meeting, the company, and every officer of
the company who is in default, shall be punishable
with fine which may extend to[ five hundred
rupees.”
(b).- Section 194 of the Act provides as under:-
“194.
Minutes to be evidence-- Minutes of meetings
kept in accordance with the provisions of section
193 shall be evidence of the proceedings recorded
therein.”
(c).- Section 195 of the Act provides as under:-
“195. Presumptions to be drawn where minutes
duly drawn and signed- Where minutes of the
proceedings of any general meeting of the
company or of any meeting of its Board of
directors or of a committee of the Board [have
been kept in accordance with the provisions of
section 193], then, until the contrary is proved, the
meeting shall be deemed to have been duly called
and held, and all proceedings thereat to have duly
taken place, and in particular, all appointments of
directors or liquidators made at the meeting shall
be deemed to be valid.”
(d).- Section 287 of the Act provides as under:-
“287. Quorum for meetings.
(1) In this section-
(a) "total strength" means the total strength of the
Board of directors of a company as determined in
pursuance of this Act, after deducting therefrom
the number of the directors, if any, whose places
may be vacant at the time; and18
(b) "interested director" means any director whose
presence cannot, by reason of section 300, count
for the purpose of forming a quorum at a meeting
of the Board, at the time of the discussion or vote
on any matter.
(2) The quorum for a meeting of the Board of
directors of a company shall be one-third of its
total strength (any fraction contained in that onethird
being rounded off as one), or two directors,
whichever is higher:
Provided that where at any time the number
of interested directors exceeds or is equal to twothirds
of the total strength, the number of the
remaining directors, that is to say, the number of
the directors who are not interested, present at
the meeting being not less than two, shall be the
quorum during such time.”
13. From the above provisions of the Act, it is clear that in the
absence of minutes of proceedings of the meetings under
Section 193 of the Act, authorising Shri Tukaram Parab, the
Consultant, to file complaint and to depose on behalf of the
complainant or authorising Shri Chandrakant Gawas to execute
power of attorney in favour of Tukaram to do all such acts, it
could not be said that there was such an authorisation. There is
presumption in respect of such minutes and the minutes are
presumed to be true and onus lies heavily on the party asserting
that they are not correct. In the present case admittedly,
certified true copy of the minutes of the meeting dated
12.12.2011 were not produced on record. The Special Power of
Attorney at Exhibit 45 was also executed by the said Managing
Director namely Chandrakant Gawas and not be both the
Directors. The said Power of Attorney was executed in view of a
resolution being adopted by the company authorising the
Managing Director Shri Chandrakant Gawas to appoint a
constituted attorney on behalf of the company. But as already
stated above, the said resolution at Exhibit 44 was not adopted
by both the Directors but by a single Director. Hence, the said
Special Power of Attorney was also not sufficient to authorise Shri
Tukaram Parab to institute the complaint and to depose on behalf
of the complainant. Since in terms of Section 287(2) of the Act,
as quoted above, which prescribes the quorum for the meeting of
Board of Directors, the required quorum in the present case was
two and since only one Director had adopted the said resolution
and consequently executed the Power of Attorney, it could not be
said that the complaint was filed by the company i.e. “payee” or
by “holder in due course” of the cheque. In terms of Section
142 of the N. I. Act, a complaint is bound to be filed by payee or
as the case may be holder in due course of the cheque,
notwithstanding anything contained in the Code of Criminal
Procedure. Hence, the complaint had to be filed by the company
and since it was not proved that Chandrakant Gawas was the
authorised person of the complainant to file the complaint, the
complaint itself was not maintainable.
IN THE HIGH COURT OF BOMBAY AT GOA.
CRIMINAL REVISION APPLICATION NO. 21 OF 2014.
M/S. SHRADHA SHIPPING CO. PVT. LTD. Vs M/S. ADHITHRI TRADING COMPANY,
CORAM :- U. V. BAKRE, J.
Date:- 25thNovember, 2014.
Citation;2015 CRLJ(NOC)483 BOM
This revision application is directed against the judgment
and order dated 11.12.2013 passed by the learned Additional
Sessions Judge, FTC-II Margao, (“Appellate Court”, for short) in
Criminal Appeal No. 61/2013.
2. The said Criminal Appeal No. 61/2013 was, in turn, filed
against the judgment, order and sentence dated 17.4.2013
passed by the learned Judicial Magistrate, First Class, 'B' Court
Vasco ('J.M.F.C.', for short) in Criminal Case No. 113/OA/NIA/
2011/B. Applicant was the complainant whereas respondents
were the accused in the said Criminal Case. The parties shall
hereinafter be referred to as per their status in the said Criminal
Case.
3. The complainant had filed a complaint against the accused
persons for offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 ('N. I. Act', for short) which
gave rise to the said Criminal Case. The case of the complainant,3
in short, was as follows:-
Complainant was a company engaged in the business of
operating barges for transportation of mineral ore and it also
gave its barges on hire to interested operators. The accused
no. 2 was engaged in the business of transportation of mineral
ore and carried on business under the name and style as M/s.
Adithri Trading Company i.e accused no. 1. Accused no 2 was the
sole proprietor of accused no.1. The accused took on hire a barge
of the complainant by name M.V. Shri Rashtroli. Initially, the
accused engaged the said barge for M/s. Omkar Logistics and
made two trips. The accused guaranteed payment of freight
charges for the said two trips and requested the complainant to
raise invoices in the name of M/s. Omkar Logistics, to which the
complainant agreed. Thereafter the accused operated the said
barge for their own business. The complainant raised two
invoices in the name of M/s. Omkar Logistics and six invoices in
the name of the accused no.1 (with details as mentioned in
paragraph 4 of the complaint). The accused made payments
against running account and an amount of `. 16,50,493/- was
paid by cheques and RTGS mode of payment was effectively
realized. Thereafter the accused made further payment of
`. 25,00,000/- by cheque bearing no. 524141 dated 15.10.20114
drawn on UCO Bank, Vasco-da-Gama, Goa on account. The said
cheque when presented was returned dishonoured on
10.11.2011 with the remark “payment stopped by the drawer”.
By a legal notice dated 22.11.2011, the complainant called upon
the accused to make the payment of the cheque amount within
15 days, from the date of receipt of notice. The said notice was
duly received by the accused on 25.11.2011 but they did not
make payment and on the contrary sent a reply dated
07.12.2011 inter alia making false allegations against the
complainant and denying the liability. Hence the complaint.
4. Upon substance of accusation being explained to the
accused persons, they pleaded not guilty and claimed to be tried.
The complainant examined its consultant Shri Tukaram Parab, in
his capacity allegedly as its Constituted Attorney, as PW.1. He
produced various documents. The statement of accused no. 2
came to be recorded under Section 313 of Cr.P.C. He denied the
case of the complainant and stated that he was not liable to pay
any amount to the complainant as regards the disputed cheque
and no offence under Section 138 was made out. The accused
persons did not examine any witness in defence. 5
5. Upon consideration of the evidence on record, the learned
J.M.F.C., held that all the ingredients of Section 138 of the N. I.
Act were established against the accused beyond reasonable
doubt. The accused was held guilty and was convicted of the
offence punishable under Section 138 of N. I. Act and was
sentenced to undergo Simple Imprisonment for a period of three
months and to pay compensation of `. 30,00,000/- to the
complainant, in default, to undergo Simple Imprisonment for a
further period of three months.
6. Aggrieved by the said Judgment, order and sentence passed
by the learned J.M.F.C., the accused persons approached the
learned Sessions Judge, South Goa, Margao by filing Criminal
Appeal No. 61/2013. Vide judgment dated 11.12.2013 passed in
the said Criminal Appeal, the learned Appellate Court held that
the complaint was filed by the attorney of only one of the
directors of the complainant-company in contravention of Section
287(2) of Companies Act, 1956 (“the Act”, for short). It was found
that the board resolution at Exhibit 44 was not a certified extract
of the resolution but simply a document signed by single director
and that the complainant failed to produce either the minutes of
meeting or even to examine said Chandrakant Gawas. It was6
therefore held that there was doubt whether PW1 was authorised
to file complaint and to depose on behalf of the complainant. The
Appellate Court found that PW1 was not an employee of the
complainant and was private consultant, having his own
consultancy and had no personal knowledge of any of the
transactions between the complainant and the accused and he
had never acted as an agent of the complainant-company, which
was the ‘payee’ or ‘the holder in due course’ of the cheque and
possessed no knowledge of the actual transaction forming
subject matter of the complaint. The Appellate Court held that
besides the fact that the authorisation of PW1 to file the
complaint was doubtful, the case was otherwise covered by the
judgment of the Apex Court in the case of “A. C. Narayanan Vs.
State of Maharashtra”, [2013 (11) Scale 360). The Appellate
Court further found that the complainant could not prove the
existing liability of the accused under the cheque in question
beyond reasonable doubt. Consequently, the appeal came to be
allowed and the judgment, order and sentence passed by the
learned J.M.F.C., was quashed and set aside. The complainant is
aggrieved by the judgment of the Appellate Court and has filed
the present revision application. 7
7. Mr. Usgaonkar, learned counsel for the complainant,
pointed out that the revision application has been admitted on
two points namely whether PW1 was authorized to give
evidence/file complaint on behalf of the original complainant
and whether the presumptions envisaged under Sections 118
and 138 of the N.I. Act had been overcome by the present
respondents. He submitted that the complaint was filed by the
company and was signed and verified by Tukaram Parab, as
constituted attorney of the complainant. He submitted that
Tukaram did so on the strength of the resolution, extract of which
was produced by PW1 along with the original and after
comparing with the original, the said notarised copy was
marked as Exhibit 44. He read out Section 54 of the Act and
submitted that a director can sign such extract. He further
submitted that in terms of Section 48 of the Act, a seal of the
company is required only when document is a deed. He
submitted that the Appellate Court erred in holding that seal
was required on the said extract of resolution. Learned Counsel,
thereafter, took me through the evidence of PW1 and submitted
that nowhere in the entire evidence, authority of PW1 was
challenged. He submitted that there were only two directors of
the complainant-company and that the minutes of the meeting8
authorising PW1 were signed in the presence of both. He
submitted that a copy of the minutes of the meeting has now
been annexed to the present revision application. He submitted
that though there was no specific averment in the complaint that
PW1 had personal knowledge about the transaction, however,
PW1 stated in his affidavit-in-evidence that he had personal
knowledge. He submitted that the judgment of the Supreme
Court in the case of “A. C. Narayanan” (supra) came after the
filing of complaint in the present case and has to interpreted
meaningfully to advance justice to the parties. He submitted
that the direction in the case of “A. C. Narayanan”, (supra) that it
is required to make specific assertion as to the knowledge of the
power of attorney holder in the said transaction explicitly in the
complaint is for the purpose of putting opposite party on guard
and same should not be taken as mandatory but directory by
giving such meaningful interpretation. He therefore, urged that
PW1 had necessary authority to file the complainant as well to
depose in the matter and had required personal knowledge of
facts concerning transaction. He next submitted that in the reply,
the respondents had not denied the transaction and it was not
their case that ` 10,00,000/- was paid from out of the dues of
` 25,00,000/- and balance amount was only ` 15,00,000/-. He9
submitted that representative of the accused did not step into
the witness box to prove their case and hence the presumption
under section 139 of the N. I., Act cannot be said to have been
rebutted by the accused. He pointed out that in paragraphs 2, 3
and 24 of the Judgment, the learned J.M.F.C. held that there was
legally enforceable debt but the Appellate Court did not set aside
the said findings. He submitted that there was an admission to
the effect that the total liability was more than ` 100,00,000/-
and, therefore, according to him, the subject cheque was towards
legally enforceable debt or liability. He further submitted that
there were no sufficient funds in the account of the accused and,
therefore, endorsement “stop payment” cannot help them to
establish that the cheque was issued towards security. According
to the learned counsel, there was ample evidence in the form of
invoices to prove the transaction and that the accused had not
rebutted the presumption arising out of Section 139 of the N. I.
Act. He, therefore, urged that the judgment of the Appellate
Court be quashed and set aside and the judgment of the learned
J.M.F.C. be restored. He relied upon the Judgment in the cases of
“A. C. Narayanan“ (supra) and “Rangappa Vs. Shri Mohan”
reported in (2010)11 SCC 441. 10
8. On the other hand, Mr. Shivan Dessai, learned counsel for
the accused persons, read out Section 193 of the Act which
shows as to how the minutes of the meeting have to be
maintained. He read out Section 195 of the Act under which
there is presumption of genuineness regarding the minutes. He
submitted that under Section 55 of the Act a director can only
give authentication. According to the learned counsel,
presumption applies only to the minutes and to nothing else and
therefore, minutes of the meeting had to be produced but were
not produced by the complainant before the lower Court though
PW1, several times, had undertaken to produce the same. He
submitted that in a criminal revision now, the petitioner cannot
be permitted to produce the same and this Court cannot look
into the same. He read out Section 142 of the N. I. Act and
submitted that complaint should be filed by payee or as the case
may be the holder in due course of the cheque and this is
notwithstanding anything contained in the Code of Criminal
Procedure. He, therefore, urged that in case of company, the
complaint must be filed by the payee or holder in due course and
there is no other alternative. He pointed out that what is
produced on record at Exhibit 44 itself is stated to be a
resolution. He, therefore, urged that the same is not an extract11
of the resolution signed by one of the directors but it is a
resolution signed by only one director and therefore the same is
illegal. He, submitted that therefore PW1 had no authority to file
the complaint and to depose in the case. He further submitted
that PW1 was only a consultant and that he had no knowledge
of the transaction pertaining to the cheque between the parties.
He submitted that in the circumstances above, the judgment of
the Apex Court in the case of “A. C. Narayanan”, (supra) squarely
applies to the case, and on this ground also the revision
application deserves to be dismissed. He next submitted that
there was no legally enforceable debt. He pointed out that
according to the complainant, the accounts were settled on
31.10.2011 and not on 15.10.2011, which is the date of the
cheque. He further pointed out that there are no log sheets of
Adhithri produced on record and invoices are not proved to be
pertaining to the accused persons. He, therefore, urged that the
transaction was not proved and, therefore, legally enforceable
debt was also not proved. He further submitted that certificate
under Section 65B of the Evidence Act was wrongly issued by
PW1 and the statement of accounts was therefore not proved.
According to the learned counsel, the evidence on record would
reveal that according to PW1 himself, an amount of ` 10,00,000/-12
was paid since the respondent could not pay ` 25,00,000/-. He
submitted that a security could have become enforceable only if
the liability had been crystalised and had become due. He
submitted that in the present case, the liability had not been
proved. He submitted that there is no infirmity in the judgment
of the appellate Court and the view taken by the appellate Court
is probable one and even if this Court finds that there is another
view possible, this Court cannot substitute the same. He
contended that when there was nothing proved against the
respondents, the question of their representative stepping into
the witness box did not arise. He, therefore, urged that acquittal
of the respondent was perfectly legal and therefore, prayed that
revision application be dismissed. Learned counsel relied upon
the following judgments:-
i. “A. C. Narayanan Vs. State of Maharashtra and another” ,
[2013 (6) Bom.C. R. 424]
ii. “Rangappa Vs Sri Mohan”, [(2010) 11 SCC 441].
iii. “Shri Ashok Bampto Pagui Vs. Agencia Real Canacona Pvt.
Ltd.”, [2007(4) Bom. C. R. 465].
iv. Judgment dated 17.10.2012 passed by this Court in
Criminal Appeal No. 55 of 2010.13
v. Judgment dated 11.9.2012 passed by this Court in Criminal
Appeal No. 27 of 2010.
9. I have gone through the records and proceedings. I have
considered the submissions made by learned counsel for the
parties and I have also gone through the judgments relied upon
by the parties.
10. The first point that arises for determination is whether PW1
had authority to file the complaint and whether he had authority
to depose on behalf of the complainant.
11. Section 142(b) of the N. I. Act, provides that
notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), no Court shall take cognizance of
any offence punishable under section 138 except upon a
complaint, in writing, made by the payee or, as the case may be,
the holder in due course of the cheque. In the case of “Dale &
Carrington Invt. (P) Ltd. and Anr. Vs. P. K. Prathapan and Ors.”,
reported in [(2005) 1 SCC 212], the Hon'ble Supreme court has
observed that the Company being a juristic person, acts through
its Directors who are collectively referred to as the Board of14
Directors. An individual Director has no power to act on behalf of
a company of which he is a Director, unless by some resolution of
the Board of Directors of the company specific power is given to
him/her. In the present case, the complaint had been filed by the
company and was signed by Shri Tukaram Parab as constituted
attorney of the complainant. Section 54 of the Act provides that
save as otherwise expressly provided in this Act, a document or
proceeding requiring authentication by a company may be
signed by a director, the managing agent, the secretary or other
authorised officer of the company, and need not be under its
common seal. Thus, if as contended by learned counsel for the
complainant, what is produced as Exhibit 44 is just a true extract
of the resolution, then it could have been held to be legal. But
that is not the case. In his affidavit-in-evidence, Shri Tukaram
Parab (PW1) stated that he was the constituted attorney of the
complainant and had signed the complaint on behalf of the
complainant. In his examination-in-chief, inter alia, he stated
that he was producing the Board Resolution dated 12.12.2011.
What had been produced on record at Exhibit 44 was a notarised
copy of the Board Resolution, itself, passed at the meeting of
Board of Directors on 12.12.2011 and not any extract of the
Board Resolution. From the deposition of PW1, it can be seen15
that the original of the said Board Resolution was shown to the
trial court and it was returned back to the PW1 and notarised
copy of the same was taken on record and marked as Exhibit 44.
Therefore, the said document named as Board Resolution was
not covered by Section 54 of the Act. By this Board Resolution at
Exhibit 44, the Director Mr. Chandrakant K. Gawas on behalf of
the complainant resolved that he himself as Managing Director
was authorised to execute power of attorney in favour of the
Consultant Mr. Tukaram Parab authorising him to represent the
Company in the Court of J.M.F.C. at Vasco and all other Courts
and to take all such steps as may be found to be in the interest
of the Company. In his cross-examination, PW1 deposed that
Chandrakant Gawas was the Managing Director of the
complainant and the other Director was Chitra Chandrakant
Gawas. Hence, there were only two Directors but only one of
them had signed the Board Resolution at Exhibit 44.
12. (a).- Section 193 of the Act provides as under:-
“193. Minutes of proceedings of general meetings
and of Board and other meetings.
(1) Every company shall cause minutes of all
proceedings of every general meeting and of all
proceedings of every meeting of its Board of
directors or of every committee of the Board, to be
kept by making within thirty days of the conclusion
of every such meeting concerned, entries thereof16
in books kept for that purpose with their pages
consecutively numbered.
(1A) Each page of every such book shall be
initialled or signed and the last page of the record
of proceedings of each meeting in such books shall
be dated and signed-
(a) in the case of minutes of proceedings of a
meeting of the Board or of a committee thereof,
by the chairman of the said meeting or the
chairman of the next succeeding meeting;
(b) in the case of minutes of proceedings of a
general meeting, by the chairman of the same
meeting within the aforesaid period of thirty days
or in the event of the death or inability of that
chairman within that period, by a director duly
authorised by the Board for the purpose.
(1B) In no case the minutes of proceedings of a
meeting shall be attached to any such book as
aforesaid by pasting or otherwise.
(2) The minutes of each meeting shall contain a
fair and correct summary of the proceedings
thereat.
(3) All appointments of officers made at any of the
meetings aforesaid shall be included in the
minutes of the meeting.
(4) In the case of a meeting of the Board of
directors or of a committee of the Board, the
minutes shall also contain-
(a) the names of the directors present at the
meeting; and
(b) in the case of each resolution passed at the
meeting, the names of the directors, if any,
dissenting from, or not concurring in, the
resolution.
(5) Nothing contained in sub-sections (1) to (4)
shall be deemed to require the inclusion in any
such minutes of any matter which, in the opinion
of the chairman of the meeting-
(a) is, or could reasonably be regarded as,
defamatory of any person;
(b) is irrelevant or immaterial to the proceedings;
or
(c) is detrimental to the interests of the company.
Explanation.- The chairman shall exercise an17
absolute discretion in regard to the inclusion or
non-inclusion of any matter in the minutes on the
grounds specified in this sub- section.
(6) If default is made in complying with the
foregoing provisions of this section in respect of
any meeting, the company, and every officer of
the company who is in default, shall be punishable
with fine which may extend to[ five hundred
rupees.”
(b).- Section 194 of the Act provides as under:-
“194.
Minutes to be evidence-- Minutes of meetings
kept in accordance with the provisions of section
193 shall be evidence of the proceedings recorded
therein.”
(c).- Section 195 of the Act provides as under:-
“195. Presumptions to be drawn where minutes
duly drawn and signed- Where minutes of the
proceedings of any general meeting of the
company or of any meeting of its Board of
directors or of a committee of the Board [have
been kept in accordance with the provisions of
section 193], then, until the contrary is proved, the
meeting shall be deemed to have been duly called
and held, and all proceedings thereat to have duly
taken place, and in particular, all appointments of
directors or liquidators made at the meeting shall
be deemed to be valid.”
(d).- Section 287 of the Act provides as under:-
“287. Quorum for meetings.
(1) In this section-
(a) "total strength" means the total strength of the
Board of directors of a company as determined in
pursuance of this Act, after deducting therefrom
the number of the directors, if any, whose places
may be vacant at the time; and18
(b) "interested director" means any director whose
presence cannot, by reason of section 300, count
for the purpose of forming a quorum at a meeting
of the Board, at the time of the discussion or vote
on any matter.
(2) The quorum for a meeting of the Board of
directors of a company shall be one-third of its
total strength (any fraction contained in that onethird
being rounded off as one), or two directors,
whichever is higher:
Provided that where at any time the number
of interested directors exceeds or is equal to twothirds
of the total strength, the number of the
remaining directors, that is to say, the number of
the directors who are not interested, present at
the meeting being not less than two, shall be the
quorum during such time.”
13. From the above provisions of the Act, it is clear that in the
absence of minutes of proceedings of the meetings under
Section 193 of the Act, authorising Shri Tukaram Parab, the
Consultant, to file complaint and to depose on behalf of the
complainant or authorising Shri Chandrakant Gawas to execute
power of attorney in favour of Tukaram to do all such acts, it
could not be said that there was such an authorisation. There is
presumption in respect of such minutes and the minutes are
presumed to be true and onus lies heavily on the party asserting
that they are not correct. In the present case admittedly,
certified true copy of the minutes of the meeting dated
12.12.2011 were not produced on record. The Special Power of19
Attorney at Exhibit 45 was also executed by the said Managing
Director namely Chandrakant Gawas and not be both the
Directors. The said Power of Attorney was executed in view of a
resolution being adopted by the company authorising the
Managing Director Shri Chandrakant Gawas to appoint a
constituted attorney on behalf of the company. But as already
stated above, the said resolution at Exhibit 44 was not adopted
by both the Directors but by a single Director. Hence, the said
Special Power of Attorney was also not sufficient to authorise Shri
Tukaram Parab to institute the complaint and to depose on behalf
of the complainant. Since in terms of Section 287(2) of the Act,
as quoted above, which prescribes the quorum for the meeting of
Board of Directors, the required quorum in the present case was
two and since only one Director had adopted the said resolution
and consequently executed the Power of Attorney, it could not be
said that the complaint was filed by the company i.e. “payee” or
by “holder in due course” of the cheque. In terms of Section
142 of the N. I. Act, a complaint is bound to be filed by payee or
as the case may be holder in due course of the cheque,
notwithstanding anything contained in the Code of Criminal
Procedure. Hence, the complaint had to be filed by the company
and since it was not proved that Chandrakant Gawas was the20
authorised person of the complainant to file the complaint, the
complaint itself was not maintainable. The contention of the
learned Counsel for the complainant that the authority of PW1 to
depose in the matter was not challenged in the crossexamination,
is not true. On 17.08.2012, a suggestion was put to
PW1 that the Board Resolution dated 12.12.2011 at Exhibit 44
was a false document since it had not been signed by any
competent person. PW1 denied the above suggestion but added
that he will have to check if there was any document to suggest
that the Board meeting was held on 12.12.2011. On 15.10.2012,
PW1 stated that in spite of his statement on the earlier date that
he would check if there was any Board meeting of the
complainant held on 12.12.2011, he had not checked the same.
Be that as it may, the requirement of authority, in a particular
manner, was statutory one and without the same the complaint
could not have become valid and maintainable. In this Revision
application, the applicant has produced a copy of the said
minutes. In Revision Application, Court can call for and examine
the record of proceedings before any inferior Court but cannot
take on record any document which was not produced before the
inferior Court. When the resolution of the Board of Directors
produced by PW1 as Exhibit 44, which was signed by only one21
Director, did not show that both the Directors of the complainant
were present and had passed the said resolution and in spite of
having stated twice that he would check whether there was
really any document showing that there was a Board meeting
held on 12.12.2011, PW1 did not produce any minutes of such
meeting before the learned J.M.F.C., the copy of the alleged
minutes now produced which say that both the Directors were
present, cannot be said to be beyond suspicion and therefore this
court is not inclined to look into it.
14. In the case of “Shri Ashok Bampto Pagui “ (supra), this
Court has observed at para 21, thus:-
“ A Director, as an individual Director, has no
power to act on behalf of the company. He is only
one of a body of Directors called the Board of
Directors and alone he has no power except such
as may be delegated to him by the Board of
Directors or given to him by the articles of
association of a company. In the case at hand, the
complaint was filed by one of the Directors and as
already stated by a Director who had initially
complained to the Police that the subject cheque
was forged by the accused, and, without any
resolution of the company or any authorization
from the Board of Directors. The view held by me22
is consistent with the views expressed in the
decisions referred to herein above, namely, those
of the Madras High Court in Ruby Leather Exports
Vs. K. Venu (supra), Andhra Pradesh High Court
and Delhi High Court which is now confirmed by
the view held by the Apex Court in Dale and
Carrington Invt.(P) Ltd. and Anr. v. P. K. Prathapan
and Ors. (supra) and therefore I hold that the
complaint in this case was not filed by the
company as required under Clause (a) of Section
142 of the Act and on such a complaint no process
could have been issued much less a conviction
imposed. The said Shri Prashant Shirodkar could
not have filed the same merely in his capacity of a
Director. He had to file the same only with
authorization from the Board of Directors. As
already stated, prima facie, it appears that such
authorization was issued by the complainant
company in favour of Shri Pednekar as can be
seen from the copy of power of attorney
produced.”
15. As rightly contended by the learned Counsel for the
accused, the case of “Shri Ashok Bampto Pagui “ (supra), directly
applies to the present case. Therefore, the Appellate Court has
correctly considered the provisions of law and rightly held that
PW1 had no authority to file complaint and to depose on behalf23
of the complainant.
16. Without prejudice to the above, the next point for
determination is whether PW1, Tukaram Parab, otherwise,
could have deposed on behalf of the complainant.
17. In the case of “A. C. Narayanan ” (supra) the Hon'ble
Supreme Court has held thus:-
(i) Filing of complaint petition under Section
138 of N.I Act through power of attorney is
perfectly legal and competent.
(ii) The Power of Attorney holder can depose
and verify on oath before the Court in order to
prove the contents of the complaint. However, the
power of attorney holder must have witnessed the
transaction as an agent of the payee/holder in due
course or possess due knowledge regarding the
said transactions.
(iii) It is required by the complainant to make
specific assertion as to the knowledge of the
power of attorney holder in the said transaction
explicitly in the complaint and the power of
attorney holder who has no knowledge regarding
the transactions cannot be examined as a witness
in the case.
(iv) In the light of section 145 of N.I Act, it is24
open to the Magistrate to rely upon the verification
in the form of affidavit filed by the complainant in
support of the complaint under Section 138 of the
N.I Act and the Magistrate is neither mandatorily
obliged to call upon the complainant to remain
present before the Court, nor to examine the
complainant of his witness upon oath for taking
the decision whether or not to issue process on
the complaint under Section 138 of the N.I. Act.
(v) The functions under the general power of
attorney cannot be delegated to another person
without specific clause permitting the same in the
power of attorney. Nevertheless, the general
power of attorney itself can be cancelled and be
given to another person.
18. There was no dispute that PW1 was not an employee of the
complainant but was a consultant, having his own consultancy.
The cross-examination of PW1 revealed that he had consultancy
in accounts at his residence and that he was self-employed and
was doing consultancy work at his residence as well as office
and last about two years, since prior to his deposition, he had
been providing consultancy service to the complainant and his
job for the complainant was restricted to accountancy work and
some miscellaneous work of the complainant. Though in the25
affidavit-in-evidence, PW1 stated that he was personally
conversant with the facts of the case, however, there was no
specific assertion explicitly made in the complaint as to the
knowledge of PW1 in the said transaction. Be that as it may, the
deposition of PW1 revealed that customers used to approach the
company through the supervisor in case they wanted to hire the
barges of the complainant. PW1 stated that supervisor was in
charge of bookings in consultation with the owners. PW1 further
deposed that the log sheets described sailing of the barges from
the loading point and this log sheets were issued to comply with
the order of the accused but log sheets were not written by him
and were written by the driver by name R. K. Mondal. He stated
that as per the log sheets at Exhibit 38 colly, the ore exported
was 1281.035 tons and the costs of transportation depended
upon the agreement between the transporter and the hirer. He
also stated that documents from Exhibits 31 to 44 produced by
him before the Court were given to him by the office staff of the
complainant and they were not in his possession earlier. Thus,
no documents were in the possession of PW1. He further stated
that the accused never approached him for hiring the barge
namely M. V. Shri Rashtroli. He voluntarily added that accused
had approached Chandrakant Gawas and company supervisor.26
PW1 further stated that he was not present when the accused
approached the supervisor and Shri Chandrakant Gawas and that
he was told by supervisor and the boss of the company that the
accused had approached Shri Chandrakant Gawas and the
supervisor for hiring of the said barge. From the above, it was
difficult to say that PW1 had personal knowledge in the
transaction. He stated that he had been mostly informed about
all the transactions pertaining to the hiring of the barge by the
supervisor or said Mr. Chandrakant Gawas but he was not
present for any of the meetings that might have taken place
between the company and the accused. PW1 could not
remember if the complainant-company was in need of finance
from the month of October to December. He could not say as to
whether liability which was recoverable from the accused was
shown to the Income Tax Department. PW1 was not aware as to
who was the foreman at the time when the transaction was
effected. All the above answers given by PW1 reasonably show
that PW1 had no personal knowledge of the transaction between
the complainant and the accused, concerned the cheque.
Various instances pointed out by the learned Counsel for the
complainant in the evidence of PW1, do not show that PW1 had
required personal knowledge of the transaction to which the27
subject cheque of the case pertained. As has been rightly
observed by the Appellate Court, the testimony of PW1 was
based on the information which must have been given to him by
the supervisor of the complainant or by the Managing Director
Shri Chandrakant Gawas. The supervisor and said Chandrakant
Gawas have not been examined. In the circumstances above, the
learned Appellate Court has rightly observed that the ratio of the
case of “A. C. Narayanan” (supra) becomes squarely applicable to
the case and therefore, it cannot be said that the complainant
had proved the case beyond reasonable doubt.
19. The statement of account which is part of Exhibit 39-colly
is electronic record. Hence, PW1 had issued a certificate under
Section 65B of the Evidence Act which is also a part of Exhibit
39-colly. PW1, in the said certificate, certified that the statement
of account attached to his certificate was true print out of the
electronic record maintained by the complainant in the computer
installed at the office in Chase International. He certified that the
computer system of the complainant had been under the control
of responsible officers including himself, at all times and that
such record maintained in the computer had been maintained in
the regular course of business of the complainant and the28
information in the prints submitted herein was derived from the
information regularly fed in the computer system of the
complainant. Such certificate under Section 65B of the Evidence
Act must be signed by a person occupying a responsible official
position in relation to the operation of the relevant device or the
management of the relevant activities (whichever is appropriate)
so that the electronic record produced can be taken as
admissible evidence. PW1 was only a private consultant and as
already discussed above, he had no personal knowledge of the
transaction between the parties. The evidence on record shows
that PW1 was not in a responsible official position in relation to
operation of the computers of the complainant. He was not the
author of the log sheets or the invoices and even had no free
access to the computer or the computerised record of the
complainant which were admittedly maintained under due
password known to the concerned office staff and all the
documents from Exhibit 31 to Exhibit 44 were furnished to PW1
by office staff of the complainant and were not in his possession.
In such circumstances, PW1 could not have issued the said
certificate and the said statement of account could not be said to
have been proved beyond reasonable doubt. 29
20. Lastly, let us see whether the legally enforceable debt to
the extent of the cheque amount has been proved by the
complainant to be existing on the date of the cheque, beyond
reasonable doubt.
21. As per PW1, the accounts were settled on 31.10.2011 and
not on 15.10.2011 which was the date of the subject-cheque. At
one stage, PW1 deposed that the complainant received a sum of
` 10,00,000/- vide cheque dated 26.10.2011 because the
accused had represented that he could not pay the amount of
` 25,00,000/- and honour the cheque. If that be so, the legally
enforceable debt, as on the date of presentation of the subjectcheque
to the banker of the complainant which was done some
time in November 2011, could not have been ` 25,00,000/-. PW1
has also admitted that an amount of ` 5,26,581/- was also paid
to the complainant by the accused. Once the above facts came
on record, it was for PW1 to have explained as to how still the
legally enforceable debt was ` 25,00,000/-. Subsequently, PW1
tried to correct himself by changing his earlier version and saying
that the amount of ` 10,00,000/- which was paid by cheque
dated 26.10.2011 was on account of the payment and not with
regard to or in connection with the disputed cheque. It is further30
seen that there are no log sheets of M/s Adhithri (accused no. 1)
on record though there are some invoices. The said log sheets
were not prepared by PW1 but by the driver named R. K. Mondal,
who has not been examined to establish the transaction under
the said log sheets. Two of the Invoices were in the name of
Omkar Logistics, stated to be an independent sole proprietary
concern of one Mr. Parsekar. Except the statement of PW1 in his
affidavit that the barge was engaged by the accused twice for
the benefit of Omkar Logistics and had requested the
complainant to raise invoices in the name of said Omkar
Logistics, which has been denied in his cross-examination, there
was nothing on record to establish that the barge of the
complainant was engaged by the accused for the said Omkar
Logistics. There was no written agreement between the
complainant and the accused regarding transportation of the
mineral ore. In such circumstances, it was difficult to relate
invoices to the accused. PW1 had at one stage on 15.10.2011
stated that he had produced the original copies of the invoices
at Exhibits 31 to 38 and that they were handed over to him by
the office staff of the complainant. In fact original invoices had
to go to the accused. Subsequently on 7.11.2011 PW1 again
stated that in spite of his statement that the original documents31
were produced before the Court including invoices which were in
possession of the representative of the complainant he still says
that the documents were sent to the accused. He then corrected
himself by saying that the originals were sent to the accused and
they were not in possession of the representative of the
company. It is pertinent to note that PW1 had specifically
deposed in cross-examination that he could not say as to
whether he had shown any liability which was recoverable from
the accused, to the Income Tax Department. Testimony of PW1
revealed that the complainant had received an amount of
` 1,24,126/- and ` 5,26,581/- from the accused and the subjectcheque
was handed over to the complainant by the accused on
15.10.2011, but the barge was discharged only on 21.10.2011.
Thus, as on 15.10.2011 the transaction was not even complete.
Therefore, as has been rightly held by the Appellate Court the
complainant had failed to prove the existing liability of the
accused under the cheque in question, beyond reasonable doubt.
In the case of “Rangappa” (supra), the Apex Court has held that
an accused for discharging the burden of proof placed upon him
under a statue need not examine himself. He may discharge his
burden on the basis of the materials already brought on record.
It has been held that the accused has constitutional right to32
maintain silence and standard of proof on the part of an accused
is different whereas the prosecution must prove the guilt of an
accused beyond all reasonable doubt. The standard of proof so
as to prove a defence on the part of an accused is
“preponderance of probabilities”. Inference of preponderance of
probabilities can be drawn not only from the materials brought
on record by the parties but also by reference to the
circumstances upon which he relies. In the circumstances above,
it has been held that the rebuttal does not have to be
conclusively established but such evidence must be adduced
before the Court in support of the defence that the Court must
either believe the defence to exist or consider its existence to be
reasonably probable, the standard of reasonability being that of
the 'prudent man'. Circumstances of the present case are such
that there was absolutely no need for any representative of the
accused to step into the witness box.
22. Admittedly, the accused persons had duly replied the
statutory notice under Section 138 of the N. I. Act, sent to them
by the complainant. The said reply is at Exhibit 43. The accused
informed the complainant that due to bad weather and natural
calamity, the vessel 'BRONZA' could not be loaded in time. It was33
informed that the complainant had raised the bills on terms
which had never been discussed or accepted. It was stated in
this reply that since the barge of the complainant was with the
cargo of the accused from 06.06.2011 to 21.10.2011, as good
business people, they would compensate expenses born by the
complainant in the form of crew salary and HSD and shall also
pay certain compensation for the trip no. 127/01 dated
06.06.2011 which got discharged on 21.10.2011. The accused
stated that since the complainant was in urgency to settle the
accounts towards the amount due and payable against the hire
charges of the trip no. 127/01 dated 06.06.2011, of barge
'Rashtroli' PNJ 313, the accused had issued cheque no. 524141
dated 15.10.2011 for ` 25,00,000/- as security with the condition
that the said cheque will not be presented for encashment till
final account was settled. The accused lamented that in spite of
the above, it was not good that the complainant presented the
said cheque in stead of returning the same back to the accused.
It was also informed that since the complainant was urgently in
need of money, the accused had issued a cheque of
` 10,00,000/- dated 26.10.2011 drawn on Uco bank, Vasco in
addition to payment of an amount of ` 5,26,581/- made during
various occasions at the request of the complainant when the34
barge was lying with load that is trip no. 127/01 dated 06.6.2011.
23. The presumption arising out of Section 139 of the N. I. Act,
had been successfully rebutted by the accused persons. This
Court by order dated 11.1.2013 in Criminal Appeal No. 42 of
2010 in the case of “Shri Shirish Vasant Borkar Vs. Shri
Vijaykumar K. Pillienkar Fadke and another” relied upon the case
of “Khedu Mohton and others Vs. State of Bihar” [AIR 1971 SC
66] wherein the Apex Court has held that if from the evidence on
record, two views are possible and one view is adopted by the
trial court, there is no scope for interference by the High Court
against that order even if the High Court is inclined to accept
the other view. In the present case, since the view adopted by
the learned Appellate Court is probable view there is no scope for
interference with the impugned judgment and order.
24. In the result, there is no merit in the appeal and therefore
the same is dismissed.
U. V. BAKRE, J.
vn*
Print Page
notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), no Court shall take cognizance of
any offence punishable under section 138 except upon a
complaint, in writing, made by the payee or, as the case may be,
the holder in due course of the cheque. In the case of “Dale &
Carrington Invt. (P) Ltd. and Anr. Vs. P. K. Prathapan and Ors.”,
reported in [(2005) 1 SCC 212], the Hon'ble Supreme court has
observed that the Company being a juristic person, acts through
its Directors who are collectively referred to as the Board of14
Directors. An individual Director has no power to act on behalf of
a company of which he is a Director, unless by some resolution of
the Board of Directors of the company specific power is given to
him/her. In the present case, the complaint had been filed by the
company and was signed by Shri Tukaram Parab as constituted
attorney of the complainant. Section 54 of the Act provides that
save as otherwise expressly provided in this Act, a document or
proceeding requiring authentication by a company may be
signed by a director, the managing agent, the secretary or other
authorised officer of the company, and need not be under its
common seal. Thus, if as contended by learned counsel for the
complainant, what is produced as Exhibit 44 is just a true extract
of the resolution, then it could have been held to be legal. But
that is not the case. In his affidavit-in-evidence, Shri Tukaram
Parab (PW1) stated that he was the constituted attorney of the
complainant and had signed the complaint on behalf of the
complainant. In his examination-in-chief, inter alia, he stated
that he was producing the Board Resolution dated 12.12.2011.
What had been produced on record at Exhibit 44 was a notarised
copy of the Board Resolution, itself, passed at the meeting of
Board of Directors on 12.12.2011 and not any extract of the
Board Resolution. From the deposition of PW1, it can be seen
that the original of the said Board Resolution was shown to the
trial court and it was returned back to the PW1 and notarised
copy of the same was taken on record and marked as Exhibit 44.
Therefore, the said document named as Board Resolution was
not covered by Section 54 of the Act. By this Board Resolution at
Exhibit 44, the Director Mr. Chandrakant K. Gawas on behalf of
the complainant resolved that he himself as Managing Director
was authorised to execute power of attorney in favour of the
Consultant Mr. Tukaram Parab authorising him to represent the
Company in the Court of J.M.F.C. at Vasco and all other Courts
and to take all such steps as may be found to be in the interest
of the Company. In his cross-examination, PW1 deposed that
Chandrakant Gawas was the Managing Director of the
complainant and the other Director was Chitra Chandrakant
Gawas. Hence, there were only two Directors but only one of
them had signed the Board Resolution at Exhibit 44.
12. (a).- Section 193 of the Act provides as under:-
“193. Minutes of proceedings of general meetings
and of Board and other meetings.
(1) Every company shall cause minutes of all
proceedings of every general meeting and of all
proceedings of every meeting of its Board of
directors or of every committee of the Board, to be
kept by making within thirty days of the conclusion
of every such meeting concerned, entries thereof16
in books kept for that purpose with their pages
consecutively numbered.
(1A) Each page of every such book shall be
initialled or signed and the last page of the record
of proceedings of each meeting in such books shall
be dated and signed-
(a) in the case of minutes of proceedings of a
meeting of the Board or of a committee thereof,
by the chairman of the said meeting or the
chairman of the next succeeding meeting;
(b) in the case of minutes of proceedings of a
general meeting, by the chairman of the same
meeting within the aforesaid period of thirty days
or in the event of the death or inability of that
chairman within that period, by a director duly
authorised by the Board for the purpose.
(1B) In no case the minutes of proceedings of a
meeting shall be attached to any such book as
aforesaid by pasting or otherwise.
(2) The minutes of each meeting shall contain a
fair and correct summary of the proceedings
thereat.
(3) All appointments of officers made at any of the
meetings aforesaid shall be included in the
minutes of the meeting.
(4) In the case of a meeting of the Board of
directors or of a committee of the Board, the
minutes shall also contain-
(a) the names of the directors present at the
meeting; and
(b) in the case of each resolution passed at the
meeting, the names of the directors, if any,
dissenting from, or not concurring in, the
resolution.
(5) Nothing contained in sub-sections (1) to (4)
shall be deemed to require the inclusion in any
such minutes of any matter which, in the opinion
of the chairman of the meeting-
(a) is, or could reasonably be regarded as,
defamatory of any person;
(b) is irrelevant or immaterial to the proceedings;
or
(c) is detrimental to the interests of the company.
Explanation.- The chairman shall exercise an17
absolute discretion in regard to the inclusion or
non-inclusion of any matter in the minutes on the
grounds specified in this sub- section.
(6) If default is made in complying with the
foregoing provisions of this section in respect of
any meeting, the company, and every officer of
the company who is in default, shall be punishable
with fine which may extend to[ five hundred
rupees.”
(b).- Section 194 of the Act provides as under:-
“194.
Minutes to be evidence-- Minutes of meetings
kept in accordance with the provisions of section
193 shall be evidence of the proceedings recorded
therein.”
(c).- Section 195 of the Act provides as under:-
“195. Presumptions to be drawn where minutes
duly drawn and signed- Where minutes of the
proceedings of any general meeting of the
company or of any meeting of its Board of
directors or of a committee of the Board [have
been kept in accordance with the provisions of
section 193], then, until the contrary is proved, the
meeting shall be deemed to have been duly called
and held, and all proceedings thereat to have duly
taken place, and in particular, all appointments of
directors or liquidators made at the meeting shall
be deemed to be valid.”
(d).- Section 287 of the Act provides as under:-
“287. Quorum for meetings.
(1) In this section-
(a) "total strength" means the total strength of the
Board of directors of a company as determined in
pursuance of this Act, after deducting therefrom
the number of the directors, if any, whose places
may be vacant at the time; and18
(b) "interested director" means any director whose
presence cannot, by reason of section 300, count
for the purpose of forming a quorum at a meeting
of the Board, at the time of the discussion or vote
on any matter.
(2) The quorum for a meeting of the Board of
directors of a company shall be one-third of its
total strength (any fraction contained in that onethird
being rounded off as one), or two directors,
whichever is higher:
Provided that where at any time the number
of interested directors exceeds or is equal to twothirds
of the total strength, the number of the
remaining directors, that is to say, the number of
the directors who are not interested, present at
the meeting being not less than two, shall be the
quorum during such time.”
13. From the above provisions of the Act, it is clear that in the
absence of minutes of proceedings of the meetings under
Section 193 of the Act, authorising Shri Tukaram Parab, the
Consultant, to file complaint and to depose on behalf of the
complainant or authorising Shri Chandrakant Gawas to execute
power of attorney in favour of Tukaram to do all such acts, it
could not be said that there was such an authorisation. There is
presumption in respect of such minutes and the minutes are
presumed to be true and onus lies heavily on the party asserting
that they are not correct. In the present case admittedly,
certified true copy of the minutes of the meeting dated
12.12.2011 were not produced on record. The Special Power of
Attorney at Exhibit 45 was also executed by the said Managing
Director namely Chandrakant Gawas and not be both the
Directors. The said Power of Attorney was executed in view of a
resolution being adopted by the company authorising the
Managing Director Shri Chandrakant Gawas to appoint a
constituted attorney on behalf of the company. But as already
stated above, the said resolution at Exhibit 44 was not adopted
by both the Directors but by a single Director. Hence, the said
Special Power of Attorney was also not sufficient to authorise Shri
Tukaram Parab to institute the complaint and to depose on behalf
of the complainant. Since in terms of Section 287(2) of the Act,
as quoted above, which prescribes the quorum for the meeting of
Board of Directors, the required quorum in the present case was
two and since only one Director had adopted the said resolution
and consequently executed the Power of Attorney, it could not be
said that the complaint was filed by the company i.e. “payee” or
by “holder in due course” of the cheque. In terms of Section
142 of the N. I. Act, a complaint is bound to be filed by payee or
as the case may be holder in due course of the cheque,
notwithstanding anything contained in the Code of Criminal
Procedure. Hence, the complaint had to be filed by the company
and since it was not proved that Chandrakant Gawas was the
authorised person of the complainant to file the complaint, the
complaint itself was not maintainable.
IN THE HIGH COURT OF BOMBAY AT GOA.
CRIMINAL REVISION APPLICATION NO. 21 OF 2014.
M/S. SHRADHA SHIPPING CO. PVT. LTD. Vs M/S. ADHITHRI TRADING COMPANY,
CORAM :- U. V. BAKRE, J.
Date:- 25thNovember, 2014.
Citation;2015 CRLJ(NOC)483 BOM
This revision application is directed against the judgment
and order dated 11.12.2013 passed by the learned Additional
Sessions Judge, FTC-II Margao, (“Appellate Court”, for short) in
Criminal Appeal No. 61/2013.
2. The said Criminal Appeal No. 61/2013 was, in turn, filed
against the judgment, order and sentence dated 17.4.2013
passed by the learned Judicial Magistrate, First Class, 'B' Court
Vasco ('J.M.F.C.', for short) in Criminal Case No. 113/OA/NIA/
2011/B. Applicant was the complainant whereas respondents
were the accused in the said Criminal Case. The parties shall
hereinafter be referred to as per their status in the said Criminal
Case.
3. The complainant had filed a complaint against the accused
persons for offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 ('N. I. Act', for short) which
gave rise to the said Criminal Case. The case of the complainant,3
in short, was as follows:-
Complainant was a company engaged in the business of
operating barges for transportation of mineral ore and it also
gave its barges on hire to interested operators. The accused
no. 2 was engaged in the business of transportation of mineral
ore and carried on business under the name and style as M/s.
Adithri Trading Company i.e accused no. 1. Accused no 2 was the
sole proprietor of accused no.1. The accused took on hire a barge
of the complainant by name M.V. Shri Rashtroli. Initially, the
accused engaged the said barge for M/s. Omkar Logistics and
made two trips. The accused guaranteed payment of freight
charges for the said two trips and requested the complainant to
raise invoices in the name of M/s. Omkar Logistics, to which the
complainant agreed. Thereafter the accused operated the said
barge for their own business. The complainant raised two
invoices in the name of M/s. Omkar Logistics and six invoices in
the name of the accused no.1 (with details as mentioned in
paragraph 4 of the complaint). The accused made payments
against running account and an amount of `. 16,50,493/- was
paid by cheques and RTGS mode of payment was effectively
realized. Thereafter the accused made further payment of
`. 25,00,000/- by cheque bearing no. 524141 dated 15.10.20114
drawn on UCO Bank, Vasco-da-Gama, Goa on account. The said
cheque when presented was returned dishonoured on
10.11.2011 with the remark “payment stopped by the drawer”.
By a legal notice dated 22.11.2011, the complainant called upon
the accused to make the payment of the cheque amount within
15 days, from the date of receipt of notice. The said notice was
duly received by the accused on 25.11.2011 but they did not
make payment and on the contrary sent a reply dated
07.12.2011 inter alia making false allegations against the
complainant and denying the liability. Hence the complaint.
4. Upon substance of accusation being explained to the
accused persons, they pleaded not guilty and claimed to be tried.
The complainant examined its consultant Shri Tukaram Parab, in
his capacity allegedly as its Constituted Attorney, as PW.1. He
produced various documents. The statement of accused no. 2
came to be recorded under Section 313 of Cr.P.C. He denied the
case of the complainant and stated that he was not liable to pay
any amount to the complainant as regards the disputed cheque
and no offence under Section 138 was made out. The accused
persons did not examine any witness in defence. 5
5. Upon consideration of the evidence on record, the learned
J.M.F.C., held that all the ingredients of Section 138 of the N. I.
Act were established against the accused beyond reasonable
doubt. The accused was held guilty and was convicted of the
offence punishable under Section 138 of N. I. Act and was
sentenced to undergo Simple Imprisonment for a period of three
months and to pay compensation of `. 30,00,000/- to the
complainant, in default, to undergo Simple Imprisonment for a
further period of three months.
6. Aggrieved by the said Judgment, order and sentence passed
by the learned J.M.F.C., the accused persons approached the
learned Sessions Judge, South Goa, Margao by filing Criminal
Appeal No. 61/2013. Vide judgment dated 11.12.2013 passed in
the said Criminal Appeal, the learned Appellate Court held that
the complaint was filed by the attorney of only one of the
directors of the complainant-company in contravention of Section
287(2) of Companies Act, 1956 (“the Act”, for short). It was found
that the board resolution at Exhibit 44 was not a certified extract
of the resolution but simply a document signed by single director
and that the complainant failed to produce either the minutes of
meeting or even to examine said Chandrakant Gawas. It was6
therefore held that there was doubt whether PW1 was authorised
to file complaint and to depose on behalf of the complainant. The
Appellate Court found that PW1 was not an employee of the
complainant and was private consultant, having his own
consultancy and had no personal knowledge of any of the
transactions between the complainant and the accused and he
had never acted as an agent of the complainant-company, which
was the ‘payee’ or ‘the holder in due course’ of the cheque and
possessed no knowledge of the actual transaction forming
subject matter of the complaint. The Appellate Court held that
besides the fact that the authorisation of PW1 to file the
complaint was doubtful, the case was otherwise covered by the
judgment of the Apex Court in the case of “A. C. Narayanan Vs.
State of Maharashtra”, [2013 (11) Scale 360). The Appellate
Court further found that the complainant could not prove the
existing liability of the accused under the cheque in question
beyond reasonable doubt. Consequently, the appeal came to be
allowed and the judgment, order and sentence passed by the
learned J.M.F.C., was quashed and set aside. The complainant is
aggrieved by the judgment of the Appellate Court and has filed
the present revision application. 7
7. Mr. Usgaonkar, learned counsel for the complainant,
pointed out that the revision application has been admitted on
two points namely whether PW1 was authorized to give
evidence/file complaint on behalf of the original complainant
and whether the presumptions envisaged under Sections 118
and 138 of the N.I. Act had been overcome by the present
respondents. He submitted that the complaint was filed by the
company and was signed and verified by Tukaram Parab, as
constituted attorney of the complainant. He submitted that
Tukaram did so on the strength of the resolution, extract of which
was produced by PW1 along with the original and after
comparing with the original, the said notarised copy was
marked as Exhibit 44. He read out Section 54 of the Act and
submitted that a director can sign such extract. He further
submitted that in terms of Section 48 of the Act, a seal of the
company is required only when document is a deed. He
submitted that the Appellate Court erred in holding that seal
was required on the said extract of resolution. Learned Counsel,
thereafter, took me through the evidence of PW1 and submitted
that nowhere in the entire evidence, authority of PW1 was
challenged. He submitted that there were only two directors of
the complainant-company and that the minutes of the meeting8
authorising PW1 were signed in the presence of both. He
submitted that a copy of the minutes of the meeting has now
been annexed to the present revision application. He submitted
that though there was no specific averment in the complaint that
PW1 had personal knowledge about the transaction, however,
PW1 stated in his affidavit-in-evidence that he had personal
knowledge. He submitted that the judgment of the Supreme
Court in the case of “A. C. Narayanan” (supra) came after the
filing of complaint in the present case and has to interpreted
meaningfully to advance justice to the parties. He submitted
that the direction in the case of “A. C. Narayanan”, (supra) that it
is required to make specific assertion as to the knowledge of the
power of attorney holder in the said transaction explicitly in the
complaint is for the purpose of putting opposite party on guard
and same should not be taken as mandatory but directory by
giving such meaningful interpretation. He therefore, urged that
PW1 had necessary authority to file the complainant as well to
depose in the matter and had required personal knowledge of
facts concerning transaction. He next submitted that in the reply,
the respondents had not denied the transaction and it was not
their case that ` 10,00,000/- was paid from out of the dues of
` 25,00,000/- and balance amount was only ` 15,00,000/-. He9
submitted that representative of the accused did not step into
the witness box to prove their case and hence the presumption
under section 139 of the N. I., Act cannot be said to have been
rebutted by the accused. He pointed out that in paragraphs 2, 3
and 24 of the Judgment, the learned J.M.F.C. held that there was
legally enforceable debt but the Appellate Court did not set aside
the said findings. He submitted that there was an admission to
the effect that the total liability was more than ` 100,00,000/-
and, therefore, according to him, the subject cheque was towards
legally enforceable debt or liability. He further submitted that
there were no sufficient funds in the account of the accused and,
therefore, endorsement “stop payment” cannot help them to
establish that the cheque was issued towards security. According
to the learned counsel, there was ample evidence in the form of
invoices to prove the transaction and that the accused had not
rebutted the presumption arising out of Section 139 of the N. I.
Act. He, therefore, urged that the judgment of the Appellate
Court be quashed and set aside and the judgment of the learned
J.M.F.C. be restored. He relied upon the Judgment in the cases of
“A. C. Narayanan“ (supra) and “Rangappa Vs. Shri Mohan”
reported in (2010)11 SCC 441. 10
8. On the other hand, Mr. Shivan Dessai, learned counsel for
the accused persons, read out Section 193 of the Act which
shows as to how the minutes of the meeting have to be
maintained. He read out Section 195 of the Act under which
there is presumption of genuineness regarding the minutes. He
submitted that under Section 55 of the Act a director can only
give authentication. According to the learned counsel,
presumption applies only to the minutes and to nothing else and
therefore, minutes of the meeting had to be produced but were
not produced by the complainant before the lower Court though
PW1, several times, had undertaken to produce the same. He
submitted that in a criminal revision now, the petitioner cannot
be permitted to produce the same and this Court cannot look
into the same. He read out Section 142 of the N. I. Act and
submitted that complaint should be filed by payee or as the case
may be the holder in due course of the cheque and this is
notwithstanding anything contained in the Code of Criminal
Procedure. He, therefore, urged that in case of company, the
complaint must be filed by the payee or holder in due course and
there is no other alternative. He pointed out that what is
produced on record at Exhibit 44 itself is stated to be a
resolution. He, therefore, urged that the same is not an extract11
of the resolution signed by one of the directors but it is a
resolution signed by only one director and therefore the same is
illegal. He, submitted that therefore PW1 had no authority to file
the complaint and to depose in the case. He further submitted
that PW1 was only a consultant and that he had no knowledge
of the transaction pertaining to the cheque between the parties.
He submitted that in the circumstances above, the judgment of
the Apex Court in the case of “A. C. Narayanan”, (supra) squarely
applies to the case, and on this ground also the revision
application deserves to be dismissed. He next submitted that
there was no legally enforceable debt. He pointed out that
according to the complainant, the accounts were settled on
31.10.2011 and not on 15.10.2011, which is the date of the
cheque. He further pointed out that there are no log sheets of
Adhithri produced on record and invoices are not proved to be
pertaining to the accused persons. He, therefore, urged that the
transaction was not proved and, therefore, legally enforceable
debt was also not proved. He further submitted that certificate
under Section 65B of the Evidence Act was wrongly issued by
PW1 and the statement of accounts was therefore not proved.
According to the learned counsel, the evidence on record would
reveal that according to PW1 himself, an amount of ` 10,00,000/-12
was paid since the respondent could not pay ` 25,00,000/-. He
submitted that a security could have become enforceable only if
the liability had been crystalised and had become due. He
submitted that in the present case, the liability had not been
proved. He submitted that there is no infirmity in the judgment
of the appellate Court and the view taken by the appellate Court
is probable one and even if this Court finds that there is another
view possible, this Court cannot substitute the same. He
contended that when there was nothing proved against the
respondents, the question of their representative stepping into
the witness box did not arise. He, therefore, urged that acquittal
of the respondent was perfectly legal and therefore, prayed that
revision application be dismissed. Learned counsel relied upon
the following judgments:-
i. “A. C. Narayanan Vs. State of Maharashtra and another” ,
[2013 (6) Bom.C. R. 424]
ii. “Rangappa Vs Sri Mohan”, [(2010) 11 SCC 441].
iii. “Shri Ashok Bampto Pagui Vs. Agencia Real Canacona Pvt.
Ltd.”, [2007(4) Bom. C. R. 465].
iv. Judgment dated 17.10.2012 passed by this Court in
Criminal Appeal No. 55 of 2010.13
v. Judgment dated 11.9.2012 passed by this Court in Criminal
Appeal No. 27 of 2010.
9. I have gone through the records and proceedings. I have
considered the submissions made by learned counsel for the
parties and I have also gone through the judgments relied upon
by the parties.
10. The first point that arises for determination is whether PW1
had authority to file the complaint and whether he had authority
to depose on behalf of the complainant.
11. Section 142(b) of the N. I. Act, provides that
notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), no Court shall take cognizance of
any offence punishable under section 138 except upon a
complaint, in writing, made by the payee or, as the case may be,
the holder in due course of the cheque. In the case of “Dale &
Carrington Invt. (P) Ltd. and Anr. Vs. P. K. Prathapan and Ors.”,
reported in [(2005) 1 SCC 212], the Hon'ble Supreme court has
observed that the Company being a juristic person, acts through
its Directors who are collectively referred to as the Board of14
Directors. An individual Director has no power to act on behalf of
a company of which he is a Director, unless by some resolution of
the Board of Directors of the company specific power is given to
him/her. In the present case, the complaint had been filed by the
company and was signed by Shri Tukaram Parab as constituted
attorney of the complainant. Section 54 of the Act provides that
save as otherwise expressly provided in this Act, a document or
proceeding requiring authentication by a company may be
signed by a director, the managing agent, the secretary or other
authorised officer of the company, and need not be under its
common seal. Thus, if as contended by learned counsel for the
complainant, what is produced as Exhibit 44 is just a true extract
of the resolution, then it could have been held to be legal. But
that is not the case. In his affidavit-in-evidence, Shri Tukaram
Parab (PW1) stated that he was the constituted attorney of the
complainant and had signed the complaint on behalf of the
complainant. In his examination-in-chief, inter alia, he stated
that he was producing the Board Resolution dated 12.12.2011.
What had been produced on record at Exhibit 44 was a notarised
copy of the Board Resolution, itself, passed at the meeting of
Board of Directors on 12.12.2011 and not any extract of the
Board Resolution. From the deposition of PW1, it can be seen15
that the original of the said Board Resolution was shown to the
trial court and it was returned back to the PW1 and notarised
copy of the same was taken on record and marked as Exhibit 44.
Therefore, the said document named as Board Resolution was
not covered by Section 54 of the Act. By this Board Resolution at
Exhibit 44, the Director Mr. Chandrakant K. Gawas on behalf of
the complainant resolved that he himself as Managing Director
was authorised to execute power of attorney in favour of the
Consultant Mr. Tukaram Parab authorising him to represent the
Company in the Court of J.M.F.C. at Vasco and all other Courts
and to take all such steps as may be found to be in the interest
of the Company. In his cross-examination, PW1 deposed that
Chandrakant Gawas was the Managing Director of the
complainant and the other Director was Chitra Chandrakant
Gawas. Hence, there were only two Directors but only one of
them had signed the Board Resolution at Exhibit 44.
12. (a).- Section 193 of the Act provides as under:-
“193. Minutes of proceedings of general meetings
and of Board and other meetings.
(1) Every company shall cause minutes of all
proceedings of every general meeting and of all
proceedings of every meeting of its Board of
directors or of every committee of the Board, to be
kept by making within thirty days of the conclusion
of every such meeting concerned, entries thereof16
in books kept for that purpose with their pages
consecutively numbered.
(1A) Each page of every such book shall be
initialled or signed and the last page of the record
of proceedings of each meeting in such books shall
be dated and signed-
(a) in the case of minutes of proceedings of a
meeting of the Board or of a committee thereof,
by the chairman of the said meeting or the
chairman of the next succeeding meeting;
(b) in the case of minutes of proceedings of a
general meeting, by the chairman of the same
meeting within the aforesaid period of thirty days
or in the event of the death or inability of that
chairman within that period, by a director duly
authorised by the Board for the purpose.
(1B) In no case the minutes of proceedings of a
meeting shall be attached to any such book as
aforesaid by pasting or otherwise.
(2) The minutes of each meeting shall contain a
fair and correct summary of the proceedings
thereat.
(3) All appointments of officers made at any of the
meetings aforesaid shall be included in the
minutes of the meeting.
(4) In the case of a meeting of the Board of
directors or of a committee of the Board, the
minutes shall also contain-
(a) the names of the directors present at the
meeting; and
(b) in the case of each resolution passed at the
meeting, the names of the directors, if any,
dissenting from, or not concurring in, the
resolution.
(5) Nothing contained in sub-sections (1) to (4)
shall be deemed to require the inclusion in any
such minutes of any matter which, in the opinion
of the chairman of the meeting-
(a) is, or could reasonably be regarded as,
defamatory of any person;
(b) is irrelevant or immaterial to the proceedings;
or
(c) is detrimental to the interests of the company.
Explanation.- The chairman shall exercise an17
absolute discretion in regard to the inclusion or
non-inclusion of any matter in the minutes on the
grounds specified in this sub- section.
(6) If default is made in complying with the
foregoing provisions of this section in respect of
any meeting, the company, and every officer of
the company who is in default, shall be punishable
with fine which may extend to[ five hundred
rupees.”
(b).- Section 194 of the Act provides as under:-
“194.
Minutes to be evidence-- Minutes of meetings
kept in accordance with the provisions of section
193 shall be evidence of the proceedings recorded
therein.”
(c).- Section 195 of the Act provides as under:-
“195. Presumptions to be drawn where minutes
duly drawn and signed- Where minutes of the
proceedings of any general meeting of the
company or of any meeting of its Board of
directors or of a committee of the Board [have
been kept in accordance with the provisions of
section 193], then, until the contrary is proved, the
meeting shall be deemed to have been duly called
and held, and all proceedings thereat to have duly
taken place, and in particular, all appointments of
directors or liquidators made at the meeting shall
be deemed to be valid.”
(d).- Section 287 of the Act provides as under:-
“287. Quorum for meetings.
(1) In this section-
(a) "total strength" means the total strength of the
Board of directors of a company as determined in
pursuance of this Act, after deducting therefrom
the number of the directors, if any, whose places
may be vacant at the time; and18
(b) "interested director" means any director whose
presence cannot, by reason of section 300, count
for the purpose of forming a quorum at a meeting
of the Board, at the time of the discussion or vote
on any matter.
(2) The quorum for a meeting of the Board of
directors of a company shall be one-third of its
total strength (any fraction contained in that onethird
being rounded off as one), or two directors,
whichever is higher:
Provided that where at any time the number
of interested directors exceeds or is equal to twothirds
of the total strength, the number of the
remaining directors, that is to say, the number of
the directors who are not interested, present at
the meeting being not less than two, shall be the
quorum during such time.”
13. From the above provisions of the Act, it is clear that in the
absence of minutes of proceedings of the meetings under
Section 193 of the Act, authorising Shri Tukaram Parab, the
Consultant, to file complaint and to depose on behalf of the
complainant or authorising Shri Chandrakant Gawas to execute
power of attorney in favour of Tukaram to do all such acts, it
could not be said that there was such an authorisation. There is
presumption in respect of such minutes and the minutes are
presumed to be true and onus lies heavily on the party asserting
that they are not correct. In the present case admittedly,
certified true copy of the minutes of the meeting dated
12.12.2011 were not produced on record. The Special Power of19
Attorney at Exhibit 45 was also executed by the said Managing
Director namely Chandrakant Gawas and not be both the
Directors. The said Power of Attorney was executed in view of a
resolution being adopted by the company authorising the
Managing Director Shri Chandrakant Gawas to appoint a
constituted attorney on behalf of the company. But as already
stated above, the said resolution at Exhibit 44 was not adopted
by both the Directors but by a single Director. Hence, the said
Special Power of Attorney was also not sufficient to authorise Shri
Tukaram Parab to institute the complaint and to depose on behalf
of the complainant. Since in terms of Section 287(2) of the Act,
as quoted above, which prescribes the quorum for the meeting of
Board of Directors, the required quorum in the present case was
two and since only one Director had adopted the said resolution
and consequently executed the Power of Attorney, it could not be
said that the complaint was filed by the company i.e. “payee” or
by “holder in due course” of the cheque. In terms of Section
142 of the N. I. Act, a complaint is bound to be filed by payee or
as the case may be holder in due course of the cheque,
notwithstanding anything contained in the Code of Criminal
Procedure. Hence, the complaint had to be filed by the company
and since it was not proved that Chandrakant Gawas was the20
authorised person of the complainant to file the complaint, the
complaint itself was not maintainable. The contention of the
learned Counsel for the complainant that the authority of PW1 to
depose in the matter was not challenged in the crossexamination,
is not true. On 17.08.2012, a suggestion was put to
PW1 that the Board Resolution dated 12.12.2011 at Exhibit 44
was a false document since it had not been signed by any
competent person. PW1 denied the above suggestion but added
that he will have to check if there was any document to suggest
that the Board meeting was held on 12.12.2011. On 15.10.2012,
PW1 stated that in spite of his statement on the earlier date that
he would check if there was any Board meeting of the
complainant held on 12.12.2011, he had not checked the same.
Be that as it may, the requirement of authority, in a particular
manner, was statutory one and without the same the complaint
could not have become valid and maintainable. In this Revision
application, the applicant has produced a copy of the said
minutes. In Revision Application, Court can call for and examine
the record of proceedings before any inferior Court but cannot
take on record any document which was not produced before the
inferior Court. When the resolution of the Board of Directors
produced by PW1 as Exhibit 44, which was signed by only one21
Director, did not show that both the Directors of the complainant
were present and had passed the said resolution and in spite of
having stated twice that he would check whether there was
really any document showing that there was a Board meeting
held on 12.12.2011, PW1 did not produce any minutes of such
meeting before the learned J.M.F.C., the copy of the alleged
minutes now produced which say that both the Directors were
present, cannot be said to be beyond suspicion and therefore this
court is not inclined to look into it.
14. In the case of “Shri Ashok Bampto Pagui “ (supra), this
Court has observed at para 21, thus:-
“ A Director, as an individual Director, has no
power to act on behalf of the company. He is only
one of a body of Directors called the Board of
Directors and alone he has no power except such
as may be delegated to him by the Board of
Directors or given to him by the articles of
association of a company. In the case at hand, the
complaint was filed by one of the Directors and as
already stated by a Director who had initially
complained to the Police that the subject cheque
was forged by the accused, and, without any
resolution of the company or any authorization
from the Board of Directors. The view held by me22
is consistent with the views expressed in the
decisions referred to herein above, namely, those
of the Madras High Court in Ruby Leather Exports
Vs. K. Venu (supra), Andhra Pradesh High Court
and Delhi High Court which is now confirmed by
the view held by the Apex Court in Dale and
Carrington Invt.(P) Ltd. and Anr. v. P. K. Prathapan
and Ors. (supra) and therefore I hold that the
complaint in this case was not filed by the
company as required under Clause (a) of Section
142 of the Act and on such a complaint no process
could have been issued much less a conviction
imposed. The said Shri Prashant Shirodkar could
not have filed the same merely in his capacity of a
Director. He had to file the same only with
authorization from the Board of Directors. As
already stated, prima facie, it appears that such
authorization was issued by the complainant
company in favour of Shri Pednekar as can be
seen from the copy of power of attorney
produced.”
15. As rightly contended by the learned Counsel for the
accused, the case of “Shri Ashok Bampto Pagui “ (supra), directly
applies to the present case. Therefore, the Appellate Court has
correctly considered the provisions of law and rightly held that
PW1 had no authority to file complaint and to depose on behalf23
of the complainant.
16. Without prejudice to the above, the next point for
determination is whether PW1, Tukaram Parab, otherwise,
could have deposed on behalf of the complainant.
17. In the case of “A. C. Narayanan ” (supra) the Hon'ble
Supreme Court has held thus:-
(i) Filing of complaint petition under Section
138 of N.I Act through power of attorney is
perfectly legal and competent.
(ii) The Power of Attorney holder can depose
and verify on oath before the Court in order to
prove the contents of the complaint. However, the
power of attorney holder must have witnessed the
transaction as an agent of the payee/holder in due
course or possess due knowledge regarding the
said transactions.
(iii) It is required by the complainant to make
specific assertion as to the knowledge of the
power of attorney holder in the said transaction
explicitly in the complaint and the power of
attorney holder who has no knowledge regarding
the transactions cannot be examined as a witness
in the case.
(iv) In the light of section 145 of N.I Act, it is24
open to the Magistrate to rely upon the verification
in the form of affidavit filed by the complainant in
support of the complaint under Section 138 of the
N.I Act and the Magistrate is neither mandatorily
obliged to call upon the complainant to remain
present before the Court, nor to examine the
complainant of his witness upon oath for taking
the decision whether or not to issue process on
the complaint under Section 138 of the N.I. Act.
(v) The functions under the general power of
attorney cannot be delegated to another person
without specific clause permitting the same in the
power of attorney. Nevertheless, the general
power of attorney itself can be cancelled and be
given to another person.
18. There was no dispute that PW1 was not an employee of the
complainant but was a consultant, having his own consultancy.
The cross-examination of PW1 revealed that he had consultancy
in accounts at his residence and that he was self-employed and
was doing consultancy work at his residence as well as office
and last about two years, since prior to his deposition, he had
been providing consultancy service to the complainant and his
job for the complainant was restricted to accountancy work and
some miscellaneous work of the complainant. Though in the25
affidavit-in-evidence, PW1 stated that he was personally
conversant with the facts of the case, however, there was no
specific assertion explicitly made in the complaint as to the
knowledge of PW1 in the said transaction. Be that as it may, the
deposition of PW1 revealed that customers used to approach the
company through the supervisor in case they wanted to hire the
barges of the complainant. PW1 stated that supervisor was in
charge of bookings in consultation with the owners. PW1 further
deposed that the log sheets described sailing of the barges from
the loading point and this log sheets were issued to comply with
the order of the accused but log sheets were not written by him
and were written by the driver by name R. K. Mondal. He stated
that as per the log sheets at Exhibit 38 colly, the ore exported
was 1281.035 tons and the costs of transportation depended
upon the agreement between the transporter and the hirer. He
also stated that documents from Exhibits 31 to 44 produced by
him before the Court were given to him by the office staff of the
complainant and they were not in his possession earlier. Thus,
no documents were in the possession of PW1. He further stated
that the accused never approached him for hiring the barge
namely M. V. Shri Rashtroli. He voluntarily added that accused
had approached Chandrakant Gawas and company supervisor.26
PW1 further stated that he was not present when the accused
approached the supervisor and Shri Chandrakant Gawas and that
he was told by supervisor and the boss of the company that the
accused had approached Shri Chandrakant Gawas and the
supervisor for hiring of the said barge. From the above, it was
difficult to say that PW1 had personal knowledge in the
transaction. He stated that he had been mostly informed about
all the transactions pertaining to the hiring of the barge by the
supervisor or said Mr. Chandrakant Gawas but he was not
present for any of the meetings that might have taken place
between the company and the accused. PW1 could not
remember if the complainant-company was in need of finance
from the month of October to December. He could not say as to
whether liability which was recoverable from the accused was
shown to the Income Tax Department. PW1 was not aware as to
who was the foreman at the time when the transaction was
effected. All the above answers given by PW1 reasonably show
that PW1 had no personal knowledge of the transaction between
the complainant and the accused, concerned the cheque.
Various instances pointed out by the learned Counsel for the
complainant in the evidence of PW1, do not show that PW1 had
required personal knowledge of the transaction to which the27
subject cheque of the case pertained. As has been rightly
observed by the Appellate Court, the testimony of PW1 was
based on the information which must have been given to him by
the supervisor of the complainant or by the Managing Director
Shri Chandrakant Gawas. The supervisor and said Chandrakant
Gawas have not been examined. In the circumstances above, the
learned Appellate Court has rightly observed that the ratio of the
case of “A. C. Narayanan” (supra) becomes squarely applicable to
the case and therefore, it cannot be said that the complainant
had proved the case beyond reasonable doubt.
19. The statement of account which is part of Exhibit 39-colly
is electronic record. Hence, PW1 had issued a certificate under
Section 65B of the Evidence Act which is also a part of Exhibit
39-colly. PW1, in the said certificate, certified that the statement
of account attached to his certificate was true print out of the
electronic record maintained by the complainant in the computer
installed at the office in Chase International. He certified that the
computer system of the complainant had been under the control
of responsible officers including himself, at all times and that
such record maintained in the computer had been maintained in
the regular course of business of the complainant and the28
information in the prints submitted herein was derived from the
information regularly fed in the computer system of the
complainant. Such certificate under Section 65B of the Evidence
Act must be signed by a person occupying a responsible official
position in relation to the operation of the relevant device or the
management of the relevant activities (whichever is appropriate)
so that the electronic record produced can be taken as
admissible evidence. PW1 was only a private consultant and as
already discussed above, he had no personal knowledge of the
transaction between the parties. The evidence on record shows
that PW1 was not in a responsible official position in relation to
operation of the computers of the complainant. He was not the
author of the log sheets or the invoices and even had no free
access to the computer or the computerised record of the
complainant which were admittedly maintained under due
password known to the concerned office staff and all the
documents from Exhibit 31 to Exhibit 44 were furnished to PW1
by office staff of the complainant and were not in his possession.
In such circumstances, PW1 could not have issued the said
certificate and the said statement of account could not be said to
have been proved beyond reasonable doubt. 29
20. Lastly, let us see whether the legally enforceable debt to
the extent of the cheque amount has been proved by the
complainant to be existing on the date of the cheque, beyond
reasonable doubt.
21. As per PW1, the accounts were settled on 31.10.2011 and
not on 15.10.2011 which was the date of the subject-cheque. At
one stage, PW1 deposed that the complainant received a sum of
` 10,00,000/- vide cheque dated 26.10.2011 because the
accused had represented that he could not pay the amount of
` 25,00,000/- and honour the cheque. If that be so, the legally
enforceable debt, as on the date of presentation of the subjectcheque
to the banker of the complainant which was done some
time in November 2011, could not have been ` 25,00,000/-. PW1
has also admitted that an amount of ` 5,26,581/- was also paid
to the complainant by the accused. Once the above facts came
on record, it was for PW1 to have explained as to how still the
legally enforceable debt was ` 25,00,000/-. Subsequently, PW1
tried to correct himself by changing his earlier version and saying
that the amount of ` 10,00,000/- which was paid by cheque
dated 26.10.2011 was on account of the payment and not with
regard to or in connection with the disputed cheque. It is further30
seen that there are no log sheets of M/s Adhithri (accused no. 1)
on record though there are some invoices. The said log sheets
were not prepared by PW1 but by the driver named R. K. Mondal,
who has not been examined to establish the transaction under
the said log sheets. Two of the Invoices were in the name of
Omkar Logistics, stated to be an independent sole proprietary
concern of one Mr. Parsekar. Except the statement of PW1 in his
affidavit that the barge was engaged by the accused twice for
the benefit of Omkar Logistics and had requested the
complainant to raise invoices in the name of said Omkar
Logistics, which has been denied in his cross-examination, there
was nothing on record to establish that the barge of the
complainant was engaged by the accused for the said Omkar
Logistics. There was no written agreement between the
complainant and the accused regarding transportation of the
mineral ore. In such circumstances, it was difficult to relate
invoices to the accused. PW1 had at one stage on 15.10.2011
stated that he had produced the original copies of the invoices
at Exhibits 31 to 38 and that they were handed over to him by
the office staff of the complainant. In fact original invoices had
to go to the accused. Subsequently on 7.11.2011 PW1 again
stated that in spite of his statement that the original documents31
were produced before the Court including invoices which were in
possession of the representative of the complainant he still says
that the documents were sent to the accused. He then corrected
himself by saying that the originals were sent to the accused and
they were not in possession of the representative of the
company. It is pertinent to note that PW1 had specifically
deposed in cross-examination that he could not say as to
whether he had shown any liability which was recoverable from
the accused, to the Income Tax Department. Testimony of PW1
revealed that the complainant had received an amount of
` 1,24,126/- and ` 5,26,581/- from the accused and the subjectcheque
was handed over to the complainant by the accused on
15.10.2011, but the barge was discharged only on 21.10.2011.
Thus, as on 15.10.2011 the transaction was not even complete.
Therefore, as has been rightly held by the Appellate Court the
complainant had failed to prove the existing liability of the
accused under the cheque in question, beyond reasonable doubt.
In the case of “Rangappa” (supra), the Apex Court has held that
an accused for discharging the burden of proof placed upon him
under a statue need not examine himself. He may discharge his
burden on the basis of the materials already brought on record.
It has been held that the accused has constitutional right to32
maintain silence and standard of proof on the part of an accused
is different whereas the prosecution must prove the guilt of an
accused beyond all reasonable doubt. The standard of proof so
as to prove a defence on the part of an accused is
“preponderance of probabilities”. Inference of preponderance of
probabilities can be drawn not only from the materials brought
on record by the parties but also by reference to the
circumstances upon which he relies. In the circumstances above,
it has been held that the rebuttal does not have to be
conclusively established but such evidence must be adduced
before the Court in support of the defence that the Court must
either believe the defence to exist or consider its existence to be
reasonably probable, the standard of reasonability being that of
the 'prudent man'. Circumstances of the present case are such
that there was absolutely no need for any representative of the
accused to step into the witness box.
22. Admittedly, the accused persons had duly replied the
statutory notice under Section 138 of the N. I. Act, sent to them
by the complainant. The said reply is at Exhibit 43. The accused
informed the complainant that due to bad weather and natural
calamity, the vessel 'BRONZA' could not be loaded in time. It was33
informed that the complainant had raised the bills on terms
which had never been discussed or accepted. It was stated in
this reply that since the barge of the complainant was with the
cargo of the accused from 06.06.2011 to 21.10.2011, as good
business people, they would compensate expenses born by the
complainant in the form of crew salary and HSD and shall also
pay certain compensation for the trip no. 127/01 dated
06.06.2011 which got discharged on 21.10.2011. The accused
stated that since the complainant was in urgency to settle the
accounts towards the amount due and payable against the hire
charges of the trip no. 127/01 dated 06.06.2011, of barge
'Rashtroli' PNJ 313, the accused had issued cheque no. 524141
dated 15.10.2011 for ` 25,00,000/- as security with the condition
that the said cheque will not be presented for encashment till
final account was settled. The accused lamented that in spite of
the above, it was not good that the complainant presented the
said cheque in stead of returning the same back to the accused.
It was also informed that since the complainant was urgently in
need of money, the accused had issued a cheque of
` 10,00,000/- dated 26.10.2011 drawn on Uco bank, Vasco in
addition to payment of an amount of ` 5,26,581/- made during
various occasions at the request of the complainant when the34
barge was lying with load that is trip no. 127/01 dated 06.6.2011.
23. The presumption arising out of Section 139 of the N. I. Act,
had been successfully rebutted by the accused persons. This
Court by order dated 11.1.2013 in Criminal Appeal No. 42 of
2010 in the case of “Shri Shirish Vasant Borkar Vs. Shri
Vijaykumar K. Pillienkar Fadke and another” relied upon the case
of “Khedu Mohton and others Vs. State of Bihar” [AIR 1971 SC
66] wherein the Apex Court has held that if from the evidence on
record, two views are possible and one view is adopted by the
trial court, there is no scope for interference by the High Court
against that order even if the High Court is inclined to accept
the other view. In the present case, since the view adopted by
the learned Appellate Court is probable view there is no scope for
interference with the impugned judgment and order.
24. In the result, there is no merit in the appeal and therefore
the same is dismissed.
U. V. BAKRE, J.
vn*
No comments:
Post a Comment