VPK Urban Co-operative Credit Society Limited vs Shri Ramesh Mahabaleshwar Naik and another

N.A. Britto, J.—The complainant seeks leave to appeal against the acquittal of the accused u/s 138 of the Negotiable Instruments Act, 1881, vide Judgment dated 10-10-2008. The grant of leave is vehemently objected to on behalf of the accused by Shri S. R. Naik, learned Counsel appearing on behalf of Respondent No.1.

The complaint was filed by an Assistant Manager of the complainant, Deepak Gaude who also subsequently deposed on behalf of the complainant. In the course of his deposition he produced a letter dated 13-10-2005. This letter is a letter of authority issued by the General Manager of the complainant. The complainant is a Co-operative Credit Society. The said letter authorized the said Deepak Gaude to appear and depose in any criminal or civil matters filed by the Society against its customers. The said letter does not show that Deepak Gaude was authorized to file the complaint. During the course of the trial the said Deepak Gaude produced another authority letter dated 16-4-2007 signed by the General Manager of the said complainant which states that Deepak Gaude is authorized to file complaint, civil suit, execution application, etc. on behalf of the Society.

The complaint was filed on 20th July, 2005. The said Deepak Gaude was cross-examined on behalf of the accused and in the said cross-examination he stated that he could produce the resolution of the Board of Directors which authorized him to depose in the case but at no stage did he produce such a resolution. He admitted that he was not authorized to file the complaint on behalf of the complainant.

Shri D. Pangam, learned Counsel on behalf of the complainant submits that the authority to depose would include the filing of the complaint as well going by the ordinary dictionary meaning. Shri Pangam further submits that the letter dated 16-4-2007 had ratified the authority of the said Deepak Gaude who had filed the complaint.

Learned Counsel on behalf of the accused has submitted that neither of the said letters can be considered as an authority to the said Deepak Gaude to file a complaint on behalf of the complainant. He further submits that since the complaint was filed by the said Deepak Gaude without authority the same could not have been entertained or end in conviction. Learned Counsel has placed reliance on the case of Satish & Co. v. S. R. Traders(1997 (4) ALL MR 58 ) wherein it was held that the complaint filed by the company through its Manager was not authorized to file a complaint, the complaint was not maintainable and subsequent authorization in favour of the Manager could not revive the prosecution. Learned Counsel has also placed reliance on a decision of this Court in the case of Mrs. Alka Toraskar Vs. The Vaishya Urban Co-op. Credit Society Ltd. and Another, wherein it was held that in the absence of any power of attorney or a valid authority by the complainant, the complaint itself could not be entertained and a conviction based on such complaint was liable to be set aside.

Admittedly, when the complaint was filed there was no resolution of the Board of Directors of the complainant in favour of the said Deepak Gaude to file the complaint. No such resolution was ever produced. The letter of authority issued by the General Manager authorized the said Deepak Gaude only to appear and depose in any criminal or civil matters. That cannot be taken as an authority to file the complaint. The subsequent letter also did not ratify the act of filing of complaint but gave authority to the said Deepak Gaude to file complaints. That authority could not be related back on the date when the complaint was filed. Since the complaint was filed without any resolution from the Board of Directors in favour of the said Deepak Gaude, and in view of the admission by the complainant''s witness that he was not authorized to file the complaint, the complaint could not have been entertained by the Court and in any event no conviction could have been imposed in such a complaint. In the above view of the matter, this is not a fit case to grant leave to appeal. Hence, the same is hereby dismissed.