Criminal Appeal No.73 of 2009

16th February, 2010

Petitioner Counsel: Mr. D. PANGAM
Respondent Counsel: Mr. R. NORONHA,Mr. C. A. FERREIRA

Cases Cited:
Mrs. Alka Toraskar Vs. State of Goa, 2007(1) Goa L.R. 159 [Para 4,7]
National Small Industries Corporation Limited Vs. State (NCT of Delhi), 2009 ALL SCR 538 : (2009)1 S.C.C. 407 [Para 6,9,11]
VPK Urban Co-operative Credit Society Limited Vs. Shri. Santosh Datta Pednekar, Cri. Appeal No.68/2009, Dt.:-16-09-2009 [Para 6]
M/s. Satish and Company Vs. M/s. S. R. Traders, 1997(4) ALL MR (JOURNAL) 58=1998 DCR 542 [Para 7]

JUDGMENT

JUDGMENT :- This is an appeal filed by the original Complainant which is a Co-operative Credit Society, challenging the Judgment and Order dated 24.11.2008, passed by the learned J.M.F.C., Ponda, by which, the complaint came to be dismissed on the preliminary point that the person who had filed the complaint was not authorised to do so by the Complainant. As a result of the dismissal of the said complaint, the Respondent no.1-Accused was acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

2. The parties would be referred to as per their status in the Trial Court.

3. The Appellant is the original Complainant, which is a Co-operative Credit Society. The Respondent no.1 had obtained a loan of Rs.4,00,000/- from the Complainant. The Respondent no.1 committed default in repayment of the said loan amount. Towards the repayment of the said loan amount, the Accused had issued a cheque bearing no.076918, dated 22.01.2006 for Rs.48,400/- drawn on The Goa Urban Co-operative Bank Ltd., Panaji Branch. The said cheque was dishonoured on 01.02.2006 on the ground of insufficient funds. The Complainant issued a notice to the Accused on 07.02.2006, calling upon him to pay the cheque amount within 15 days. The said notice was received by the Accused on 11.02.2006. The Accused did not pay the amount of Rs.48,400/- as called upon by the Complainant resulting in the complainant filing the complaint under Section 138 of the Negotiable Instruments Act, 1881, (for short, the said Act).

4. The learned J.M.F.C., Ponda, was pleased to issue process to the Accused. In support of its case, the Complainant examined Mrs. Ratna Sawant Amonkar, the legal officer of the Complainant, as P.W.1 and closed its case. The statement of the Accused under Section 313 of the Cr.P.C. was recorded. He denied the case of the Complainant and the Accused examined D.W.1 Joseph D'Souza, the Manager of the drawee Bank. The Trial Court framed an issue as regards maintainability of the complaint, which reads as follows :

"Whether the complaint is not maintainable for non-production of proper authorization to file the complaint ?"

The Trial Court considered the letter dated 17.06.2005 in favour of Nilesh Mardolkar, the Assistant Manager of Mardol branch, who had filed the complaint and also considered the letter of Authority dated 11.07.2007 and the resolution dated 10.06.2007, which documents were marked as exhibits 8 and 36 collectively. The Trial Court considered the letter of Authority dated 17.06.2005, exhibit 8 and observed that there was no direct authority given to the said Nilesh Mardolkar to file the complaint and he was authorised only to appear and depose in favour of the Complainant-Society in any criminal or civil matter filed by the Society which implies that he was given power only to appear and depose in the matters filed by the Complainant and in view of the fact that even at the stage of evidence, P.W.1, has not produced any authorisation letter authorising Nilesh Mardolkar to file the said complaint and relying upon the case of Mrs. Alka Toraskar Vs. State of Goa & Ors. (2007(1) Goa L.R. 159), held that the complaint as filed, could not have been entertained at the initial stage itself as no authority letter authorising the said Nilesh Mardolkar to file the complaint was produced. The Trial Court, therefore, dismissed the complaint and acquitted the Accused under Section 138 of the Act. As mentioned herein above, it is this Order, which is the subject matter of challenge in the above Appeal.

5. I have heard Shri. Pangam, the learned Counsel for the Appellant and Shri. Noronha, the learned Counsel for the Respondent no.1 and the learned Public Prosecutor Shri. Ferreira for the Respondent no.2.

6. Shri. Pangam drew my attention to the letter of authority dated 17.06.2005, exhibit 8. Relying upon the said letter, Shri. Pangam submitted that Shri. Mardolkar, the Asst. Manager, has been authorised to appear and depose in any criminal or civil matter filed by the Society against its customers of Mardol Branch, and therefore, the said authorisation would include the filing of the complaint by the said Shri. Mardolkar. The learned Counsel submitted that what was necessary in terms of Section 142 of the said Act, is that the complaint has to be filed in the name of the payee or the holder in due course which in the instant case is the Co-operative Credit Society, which is an incorporeal person and, therefore, the said incorporeal person can be represented by any person namely by its employee or any other person duly authorised in that behalf. The Learned Counsel submitted that in view of the letter of authority dated 17.06.2005, exhibit 8, the complaint as filed, was maintainable. The learned Counsel for the said purpose relied upon the Judgment of the Apex Court reported in (2009)1 S.C.C. 407 : [2009 ALL SCR 538] in the matter of National Small Industries Corporation Limited Vs. State (NCT of Delhi) and Ors., in support of his contention that the complaint has to be in the name of the payee and if the payee is a company, necessarily, the complaint should be filed only in the name of the Company. Section 142 of the said Act does not specify who should represent the Company if the Company is the Complainant. The learned Counsel next relied upon the unreported Judgment of a learned Single Judge of this Court in Criminal Appeal No.68/2009, dated 16.09.2009 (VPK Urban Co-operative Credit Society Limited Vs. Shri. Santosh Datta Pednekar & anr.) in support of his submission that assuming the said Mardolkar was not authorised initially, but by a resolution dated 10.06.2007, passed subsequently, the act of filing of the complaint by Mardolkar and other Officers was ratified and an Officer named in the said resolution namely Ms. Ratna Sawant Amonkar was authorised to pursue the said complaints. The persuasion of the complaint which was the subject matter of the said Appeal by virtue of the Resolution dated 11.07.2007, was upheld by this Court. The learned Counsel submitted that in view of the fact that the present complaint was also covered by the said resolution as the said Ms. Ratna Savant Amonkar was the legal Officer who was authorised to pursue the said complaint, and therefore, the said Judgment would be applicable on all fours to the facts of the instant case.

7. Per contra, it is submitted by Shri. Noronha, learned Counsel appearing for the Accused, that a reading of the said letter of Authority dated 17.06.2005, exhibit 8, discloses that what the said Mardolkar was authorised to do was only to appear and depose in any criminal or civil matter filed by the Society and there was no specific authorisation to file a complaint. The learned Counsel submitted that a specific authorisation for filing of complaint was necessary in view of the financial and legal consequences the filing of a complaint has for the Complainant and, therefore, the word filing cannot be read in the said letter of authority as is sought to be done by the learned Counsel for the Petitioner. The learned Counsel for the Accused relied upon the Judgment of a learned Single Judge of this Court in Mrs. Alka Toraskar Vs. State of Goa & Ors. (2007(1) Goa L.R. 159) in support of his submission that the facts in the said case were para materia to the facts of the present case as the resolution in question in the said Mrs. Alka Toraskar Vs. State of Goa & Ors. (supra) was also in terms of the letter of authority in the present case to the extent of the authorisation which was conferred on the concerned Officer. The learned Counsel also relied upon the Judgment of a learned Single Judge of Andhra Pradesh High Court in 1998 DCR 542 : [1997(4) ALL MR (JOURNAL) 58] in the matter of M/s. Satish and Company Vs. M/s. S. R. Traders & Ors., in support of his submission that the subsequent ratification cannot revive complaint.

8. I have heard the learned Counsel for the parties and bestowed my anxious consideration to the rival contentions. In the instant case, the trial was proceeded with and the evidence was recorded but in view of the issue that had arisen as regards the maintainability of the complaint, the said issue was tried by the learned J.M.F.C. The said issue has been re-produced in the earlier part of this Judgment. The complaint in question was filed by one Nilesh Mardolkar, the Asst. Manager of Mardol branch, by virtue of the letter of authority dated 17.06.2005, exhibit 8. In view of the issue involved, it would be necessary to re-produce the contents of the said letter of authority, which is re-produced herein under :

"Letter of Authority

Shri. Nilesh Mardolkar, the Asst. Manager of Mardol branch is hereby authorized by this Society to appear and depose in any criminal or civil matter filed by the society against its customers of Mardol Branch."

A reading of the said letter of Authority, therefore, makes it clear that the said Nilesh Mardolkar was authorised by the Complainant to appear and depose in any criminal or civil matter filed by the Society against the customers of Mardol branch. The aspect of filing of the complaints is conspicuously absent in the said letter and what was authorised was that the said Mardolkar could appear and depose in any criminal or civil matter filed by the Society. To appear and depose stands in contradiction to the aspect of 'filing' of the complaint as 'filing' envisages the initiation of proceedings for which, there has to be a proper authorisation as the initiation of proceedings may have its own financial and legal implications for the Complainant.

9. As held by the Apex Court in the Judgment cited by Shri. Pangam, National Small Industries Corporation Limited Vs. State (NCT of Delhi) and Ors. [2009 ALL SCR 538] (supra), the complaint has to be filed in the name of the payee or the holder in due course which if it is a Company, has to be filed in the name of the Company. The said Judgment further goes on to hold that the Company can be represented by an employee or even by a non-employee authorised and empowered to represent the Company either by a resolution or by a Power of Attorney. In the instant case, there is no resolution of the Co-operative Credit Society produced on record, which authorises the said Nilesh Mardolkar to file a complaint. What is produced is only a letter of authority which also does not refer to any resolution. Therefore, even on the application of the law laid down by the Apex Court in the Judgment National Small Industries Corporation Limited Vs. State (NCT of Delhi) and Ors. [2009 ALL SCR 538] (supra), the complaint as filed was suffering from a defect as the said Mardolkar was not properly authorised in that behalf.

10. Now coming to the unreported Judgment of the learned Single Judge, relied upon by Shri. Pangam, the facts in the said case were that one Ajay Kukcolkar, who was the Accounts Officer of the Appellant-Society, had filed the complaint pursuant to a resolution of the Complainant dated 16.09.2006 and a letter of authority given by the General Manager of the Complainant dated 7.10.2006. In the course of the trial, the said Mrs. Ratna Sawant Amonkar, was examined pursuant to another resolution of the Complainant dated 10.06.2007 and the letter of authority dated 11.07.2007 issued in her favour by the General Manager of the Complainant under the said resolution dated 10.06.2007. In the facts of the said case and the contents of the resolution dated 16.09.2006, which resolution has been referred to in the said Judgment, the learned Single Judge held that the continuation of the prosecution of the said complaint by Mrs. Ratna Sawant Amonkar, was legal and could not be faulted with and, therefore, decided the said issue in favour of the Complainant-Bank. However, such is not the factual position in the instant case as, admittedly, no resolution has been produced by the Complainant-Bank authorising Shri. Mardolkar to file the complaint. Therefore, the facts of the said case and the facts of the instant case are distinguishable though the subsequent resolution dated 10.06.2007, authorising Mrs. Ratna Sawant Amonkar, is the same. Therefore, the Judgment of the learned Single Judge cannot aid the complainant in so far as the maintainability of the complaint is concerned. Though there is a subsequent ratification of the filing of the complaint by Shri. Mardolkar, by the resolution dated 10.06.2007, the said resolution, in my view, cannot cure the defect which was there at the initial stage of filing of the complaint. It is significant to note that in the letter of authority dated 11.07.2007 issued in favour of Ms. Ratna Sawant Amonkar, it has been mentioned that Shri. Nilesh Mardolkar had been authorized to file, appear and depose in any criminal and civil matter filed by the Society. Therefore, the Complainant-Bank, having realised that Shri. Mardolkar was not authorised to file a complaint, had sought to ratify the action by including the word 'file' in the letter of authority dated 11.07.2007, in which reference has been made to the letter of authority issued earlier to Shri. Mardolkar though the word 'file' does not appear in the letter of Authority dated 17.06.2005, exhibit 8 issued to Shri. Mardolkar. Therefore, having realised the difficulty in its way, the Complainant tried to salvage the situation by including the word 'file' whilst making a reference to the letter of authority dated 17.06.2005 in the letter of authority dated 11.07.2007 issued to the said Mrs. Ratna Sawant Amonkar.

11. In my view, the subsequent ratification or authorisation would be of no avail in the light of the financial and legal implications that a filing of the complaint may have for a Complainant. The reliance placed on the Judgment of the Apex Court by the learned Counsel for the Petitioner reported in (2006)5 S.C.C. 96, in the matter of Maharashtra State Mining Corpn. Vs. Sunil, is mis-placed. The Apex Court in the said case was concerned with the dismissal of an employee of the Company by the Managing Director which act was later on ratified by the Board and, in that context, the Apex Court has held that an invalid act can be ratified subsequently and when so ratified, it relates back to the date when the decision is taken. The ratio of the said Judgment cannot be applied to the facts of the case as the instant case concerns a complaint under Section 138 of the Act, which as held by the Judgment of the Apex Court in National Small Industries Corporation Limited Vs. State (NCT of Delhi) and Ors. [2009 ALL SCR 538] (supra), can be filed on behalf of a Company, which is an incorporeal person by an employee or even non-employee who is empowered to represent the Company either by a resolution or by a Power of Attorney. Since in the instant case there was no proper authorisation, the complaint as filed was not maintainable.

12. In that view of the matter, the Judgment and Order passed by the learned J.M.F.C., cannot be faulted with. There is, therefore, no merit in the Appeal, which is accordingly dismissed.

Appeal dismissed.