VPK Urban Co-operative Credit Society Limited vs Shri Krishna Fati Naik and State of Goa

N.A. Britto, J.—Heard. The applicant herein is the complainant in C. C. No.599/OA/2005/B and seeks leave to appeal against the acquittal of the accused u/s 138 of the Negotiable Instruments Act, 1881.

The complaint was filed by the complainant which is a Credit Co-operative Society Ltd., on account of bouncing of a cheque in the sum of Rs.35,000/- dated 21-9-2005 issued by the accused. On behalf of the complainant one Shri Krishna Murgaonkar, the Assistant Manager had deposed pursuant to an authority letter dated 24-10-2005 given by one Ashok D. Gaude, General Manager. As per the said letter of authority the said Shri Krishna Murgaonkar had authority to file complaint and in this context the learned Magistrate may not be right in observing that Shri Krishna Murgaonkar had no power to file the complaint. However, the said witness, examined on behalf of the complainant, had admitted that the complainant had its own Board of Directors and had further admitted that the complainant being a legal entity was represented by its Board of Directors. The learned trial Court, therefore, held that in the absence of any resolution expressly authorizing him to file a complaint or to depose on its behalf it could not be said that his decision in filing the complaint had the approval of the Board of Directors of the complainant. In coming to the said conclusion, the learned trial Court referred to the decisions of this Court in the cases of Mrs. Alka Toraskar v. State of Goa and others (2007(1) Goa L.R. 159) and Chico Ursula D''Souza v. Goa Plast Pvt. Ltd.(2009 (1) ALL MR 290). It appears that there was a Resolution taken by the Board of Directors of the complainant in favour of the said Shri Krishna Murgaonkar on 22-10-2005 but the same was not produced before the trial Court inspite of clear suggestions that the said witness examined on behalf of the complainant had no power to file the complaint.

Learned Counsel on behalf of the Applicant concedes that the said resolution was not produced before the trial Court but submits that non production was not fatal as it is an internal matter between the complainant and its officers. In my view, such a submission cannot be accepted. Once challenge was put to the complainant''s witness that he had no power either to file the complaint or to depose on behalf of the complainant, it was incumbent upon him to have produced the said resolution taken by the complainant which is a body corporate to show that he was indeed authorized to file the complaint as well as depose in support of the same. The conclusion arrived at by the learned trial Court on the basis of the aforesaid two decisions cannot be faulted. In the first case this Court held that "the resolution no.20 produced at Exh.20 did not authorize the recovery officer of the complainant co-operative Society either to file a complaint on behalf of the complainant, which is the separate legal entity or to depose on behalf of the complainant. A complaint u/s 142 of the Act can be filed either by the payee or the holder in due course. The complainant''s co-operative society was a payee in this case and the complaint was filed in its name. The authority produced did not sufficiently authorize Shri G. P. Shirodkar, either to file a complaint or to depose in support thereof. The complainant was not sufficiently represented before the court. Therefore, it cannot be said that the complaint filed or the evidence given in support thereof was in accordance with section 142 of the Act which requires that the complaint has to be made by the payee or as the case may be as the holder in due course of the cheque. In the absence of such power of attorney or a valid authority by the complainant, in favour of the recovery officer, the complaint itself could not have been entertained and the conviction based on such complaint is liable to set aside".

In the second case this Court has held that "a company is a separate juristic person distinct from its Directors or shareholders and it acts through the resolution passed by its Board of Directors and hence, a person who claims to represent another is expected to produce an authority or power which entitles him to so appear and he could have appeared and deposed on behalf of the company only in case he was authorized by the resolution of the board of directors and when no such resolution is filed the complaint filed on behalf of the company could not have been entertained and much less a conviction imposed". This is not a fit case to grant Special Leave to Appeal. Application dismissed in limine.