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Judgment
N.A. Britto, J.—The applicant herein, who is the complainant in C.C. No.219/OA/ 2007/C, seeks leave to appeal against acquittal of the accused u/s 138 of the Negotiable Instruments Act, 1881, vide judgment dated 1/06/2010 of the learned JMFC, Ponda. Applicant/complainant is a co-operative Society. The accused was prosecuted for dishonour of a cheque dated 19/01/2007 for Rs.3,80,000/-. One of the grounds on which the accused has been acquitted is that the complaint was not filed by the payee or, as the case may be by the holder in due course of the cheque, as Shri Khanolkar, who had filed the complaint was not duly authorised by the complainant.
Heard Shri A.F. Diniz, the learned Counsel on behalf of the complainant and perused copy of resolution at page 30 as well as the resolution at page 31. The document at page 30 is the resolution of the complainant by which two officers namely Mr. Nandakumar Prabhakar Khanolkar and Mr. Venkatesh Chandrakant Prabhu were authorised to depose, to attend all types of Arbitration cases, etc. This resolution does not say that any of them was authroised to file a criminal complaint which is a serious matter which invites punishment for an offence u/s 138 of the Negotiable Instruments Act, 1881. The resolution at page 31 did authorise the said two officers of the complainant to commence, institute, file criminal complaint, etc. The resolution at page 30 passed on 28/10/2007 appears to have been produced along with the complaint, but the resolution at page 31 passed on 9/05/2009 was not produced.
Counsel on behalf of the complainant submits that the accused must have received the first resolution along with the copy of the complaint. However, the fact remains that both the resolutions were not produced by the complainant in their evidence. Learned Counsel then submits that Shri Khanolkar, who was the Secretary of the complainant and, as such, was entitled to represent the society. In fact, the relevant bye law of the complainant Society on which reliance is placed by the learned Counsel reads as follows:
xx. to represent the Society in legal proceedings or to authorise any Officer of the Society or a Specialist to represent the Society before appropriate authorities with prior approval.
The learned trial Court, inter alia, referred to the case of Ashok Bamto Pagui V/s. M/s. Agencia Real Canacona Pvt. Ltd. & Anr. (2007 ALL MR (Cri.) 2238) wherein it was held that a complaint u/s 138 of the Act filed even by a Director of a Company was not maintainable, where there was no resolution by the Board of Directors. The learned trial Court has also relied on the case of Om Shakti Scheduled Castes V/s. M. Venkatesh (2008 (66)AIC 414) wherein the Kerala High Court had held that a complaint u/s 138 of the Act filed by a President of a Co-operative Society, without there being a power of attorney in his favour, authorising him to file the complaint, was not maintainable. The learned trial Court has also referred to another judgment reported in (2004 (13)AIC 234) wherein it was held that unless the document is produced, marked in evidence and initialed by the Presiding Officer of the Court, the document cannot be considered as evidence. The learned trial Court, therefore, has come to the conclusion that the resolution which was not tendered in evidence and not formally admitted could not be considered as evidence.
What goes along with the summons to the accused is generally the complaint and not the documents produced with the statement on oath or for that matter not even the statement on oath. The accused could not have normally known about the resolutions tendered on behalf of the complainant. In my view, unless the said two resolutions were produced, exhibited and proved in the course of the trial by the complainant in accordance with law, the same could not have been looked into or relied upon by the learned trial Court. The net result is that the complainant had failed to prove that the said Nandkumar P. Khanolkar was duly authorised by the complainant either to file a complaint or depose in support thereof. In the circumstances, this is not a fit case to grant leave to appeal. Consequently, the application is dismissed in limine.