Judgment :- The complainant, having failed in its attempt to get a conviction against the accused in C.C.No.1439/1993 under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act'), has preferred this appeal. 2. The facts leading to criminal case and acquittal: (a) The accused/respondent in the course of the business transaction, approached the complainant for financial assistance of Rs.27,00,000/-, to purchase 6000 bags of wheat at the rate of Rs.450/- per bag, as per the conditions agreed in the letter dated 10.8.1992. Accordingly, a sum of Rs.27,00,000/- was advanced by bankers cheque dated 11.8.1992. The accused agreed to pay the financial charge of Rs.15 per bag for 15 days and 50 paise per bag for 15 days as godown rent. In pursuance of the agreement, the accused stored only 5930 bags of wheat and issued 3 bills also. The accused unable to sell the above said 5930 bags of wheat, requested the complainant to purchase the same at Rs.445/- per quintal, as per the market rate prevailed in the last week of August 1992. He also further assured, that he would pay the difference of Rs.5/- between the sale price per bag of Rs.445/- and the price quoted in the bills viz., Rs.450/- along with the financial charges and godown rent, as agreed. In this way, accounts were verified and it was found that a sum of Rs.1,20,466/- was due, for which the accused issued a cheque bearing No.569611 dated 8.9.1992, drawn on Punjab National Bank, Madras-1, to discharge the sum of Rs.1,20,466/- due and payable by the accused to the complainant. (b) The complainant presented the cheque for collection through their bank, which was returned unpaid on 12.9.1992 with an endorsement "Insufficient funds" by the accused bank, which was informed to the accused also. After the information given by the complainant, the accused instructed the complainant to present the cheque once again and accordingly, the cheque was presented for collection on 9.10.1992, which was returned once again, for the reason of "insufficient funds", thereby showing, the accused had deliberately issued the cheque, knowing fully well, that he did not have sufficient funds in the bank and also failed to provide sufficient funds in his bank account, to honour the cheque, which is liable to be dealt with under Section 138 of the Act. (c) The complainant issued a statutory notice on 13.10.1992, which was received and acknowledged by the accused on 23.10.1992. As per the notice, the accused ought to have paid the amount, but failed to do so, thereby attracting the penal provisions of Section 138 of the Act. In this way, a private complaint was lodged before the VII Metropolitan Magistrate, George Town, Madras. (d) The accused, upon appearance, on questioning, denied the averments, thereby invited a trial, compelling the complainant to make out a case for punishment. The complainant, to establish the allegations in the complaint, aiming conviction, examined one Natarajan, the Manager, as P.W.1, seeking support from 16 documents. To eclipse the above materials, neither the accused has been examined nor any documents have been marked. (e) The learned Magistrate, weighing the above materials, came to the conclusion, that the complainant failed to prove the legal liability, that the statutory notice issued was not in accordance with law and that the resolution authorising the manager to sign the complaint was not proper, since there was violation of Section 193(1)(b) of the Companies Act, 1956. Thus, concluding the complaint came to be dismissed, acquitting the accused on 13.6.1995, which is challenged in this criminal appeal. 3. Heard the learned counsel for the appellant, Mr. S.R.Rajagopal and the learned counsel for the respondent, Mr. Abudu Kumar Rajarathinam. 4. The learned counsel for the appellant submitted that the trial Court had committed a patent error in coming to the conclusion, that there was no enforceable liability, ignoring the admitted facts as well as the presumption available legally. It is the further submission of the learned counsel for the appellant, that the trial Court has also failed to appreciate the notice, which had given the cause of action for lodging the complaint, ignoring the previous information, which is not the base for laying the complaint, giving cause of action. The further submission of the learned counsel for the appellant, is that the effect of Section 193 of the Companies Act was not properly considered and in this way, committing error, the trial Court had reached an erroneous conclusion as if P.W.1 had no authority to represent the complainant. On these grounds, conviction is sought for. 5. The further submission of the learned counsel for the appellant, is that the effect of Section 193 of the Companies Act was not properly considered and in this way, committing error, the trial Court had reached an erroneous conclusion as if P.W.1 had no authority to represent the complainant. On these grounds, conviction is sought for. 5. The learned counsel for the respondent, opposing the above submissions mainly urged, that there is no valid notice, which was rightly held by the trial Court and that P.W.1 is not the competent person to prefer a complaint. On these two grounds alone, the acquittal should deserve acceptance, was the submission on behalf of the respondent/accused. 6. Ex.P.3 is the cheque dated 8.9.1992 issued by the accused respondent in favour of the appellant/complainant for a sum of Rs.1,20,466/-. When this cheque was presented for collection, it was returned unpaid on 12.9.1992 with an endorsement "insufficient funds" by the accused bank as evidenced by Ex.P.4. This matter was informed to the respondent/accused by a telegram (Ex.P.5), followed by written communication, which was also acknowledged by the accused under Ex.P.6. It is the case of the complainant, that on the basis of the instruction by the accused, once again the cheque was represented on 9.10.1992 for collection and once again the cheque was returned with an endorsement dated 10.10.1992 for the reason of insufficient funds. As far as the above facts are concerned, there is no dispute. 7. The cheque belongs to the accused is an admitted one. It is also admitted that he had issued the cheque for a sum of Rs.1,20,466/- favouring the complainant. Thus, the complainant, being the holder of the cheque in due course, is entitled to certain presumption, also as contemplated under Section 139 of the Act, that the holder of the cheque received the cheque, for the discharge in whole or in part, or any debt or other liability, as mentioned in Section 138 of the Act. In view of the admitted position, as far as Ex.P.3 cheque is concerned, the appellant/complainant is entitled to a presumption, unless the contrary is proved. Therefore, it is the duty of the accused/respondent to prove, that there is no legally enforceable debt or the cheque was not issued for the discharge of any legally enforceable liability. 8. In view of the admitted position, as far as Ex.P.3 cheque is concerned, the appellant/complainant is entitled to a presumption, unless the contrary is proved. Therefore, it is the duty of the accused/respondent to prove, that there is no legally enforceable debt or the cheque was not issued for the discharge of any legally enforceable liability. 8. To prove the above aspect, practically, I should say, there is no evidence of any kind. As said above, the accused has not let in any evidence and he has also not examined himself as witness. This being the position, certainly the Court has to accept the oral evidence of P.W.1, supported by the presumption, unless the rebuttal evidence is available in the evidence let in by the prosecution itself, for which there is no material at all. Unfortunately, the trial Court, in my considered opinion, has proceeded, as if the burden is only upon the complainant to prove about the existence of the legally enforceable debt, forgetting Section 139 of the Act and committed a grave mistake, which should be rectified by this Court. Even assuming, that the preliminary responsibility is upon the complainant, in this case, it should be held, by going through the oral evidence of P.W.1, supported by documents, that the initial burden was fully discharged. 9. The manager of the complainant company as P.W.1 has categorically deposed about the financial help sought by the accused, entrusting of 5930 bags of wheat and the payment of Rs.27,00,000/- also by the bankers cheque, not disputed. It is the further case of P.W.1, that the accused respondent had agreed to pay the financial charge of Rs.15 per bag for 15 days and 50 paise per bag for 15 days as godown rent, not challenged. It is also an admitted position, since not challenged, that the accused was unable to sell the wheat bags and discharge the debt and therefore, he approached the complainant, who agreed to purchase the wheat at the rate of Rs.445/- per bag, agreeing to pay the difference for Rs.5/- between the sale price per bag of Rs.445/- and the price quoted in the bills at Rs.450/- along with financial charges as well as rent. In this way alone, the amount was deduced at Rs.1,20,466.25/-. In this way alone, the amount was deduced at Rs.1,20,466.25/-. From the facts spoken by P.W.1, I am unable to find any answer elicited from him, eclipsing the liability or making the complainant as the person liable to pay any amount to the accused, though a casual suggestion was thrown to P.W.1. If really the complainant had to pay a sum of Rs.36,348.50, as suggested to P.W.1, nothing would have prevented the accused/respondent to go into the box and explain, supported by the documents, which he has not done in this case. Therefore, it should be concluded, accepting the oral evidence of P.W.1, supported by certain admitted facts, that there was legally enforceable liability and only in order to discharge the said liability, the accused had issued the cheque in question viz., Ex.P.3. This conclusion should have the support of Section 139 of the Act. The trial Court, without approaching the case properly on the admitted facts, unnecessarily entertained a doubt, which had not arisen spontaneously, had given the benefits of that unnecessary doubt to the accused, which should be extinguished or erased. 10. Section 138 of the Act contemplates punishment not for mere return of the cheque or dishonour. It contemplates punishment, if the drawer of the cheque, after the return of the same, fails to make the payment of the said amount to the payee, within 15 days from the date of the notice, as contemplated under Section 138(b) of the Act, on the issue of notice demanding for the payment of the cheque amount and it further says, that non payment of the cheque amount alone gives cause of action to file a criminal complaint and not otherwise. In this way, it is a settled proposition of law, unless a valid notice has been issued successfully, prosecution could not be maintained. 11. In this case, the submission of the learned counsel for the respondent/accused, that there was no valid notice appears to be an invalid defence, which could be seen from the documents produced on behalf of the complainant. It is an admitted position, that the cheque was presented for collection at the first instance on 8.9.1992, returned dishonouring on 12.9.1992, which was informed to the accused. The above facts are evidenced by Exs.P4 to P6, not in dispute. 12. It is an admitted position, that the cheque was presented for collection at the first instance on 8.9.1992, returned dishonouring on 12.9.1992, which was informed to the accused. The above facts are evidenced by Exs.P4 to P6, not in dispute. 12. Ex.P.5 is the communication sent by Chandra Mouleeswaran, to the accused informing the dishonour of the cheque, demanding payment of Rs.1,20,466/- with interest at 24% p.a. within 24 hours. If on the basis of Ex.P.5 alone, the complaint has been filed, certainly it must be an invalid prosecution, since it failed to fulfill the ingredients required under Section 138 proviso (b) of the Act. On the basis of Ex.P.5, admittedly, the case has not been filed, showing as if this alone gave cause of action to file the complaint. It is the case of P.W.1, as averred in the complaint itself, that at the instruction of the drawer, the dishoured cheque was represented once again on 9.10.1992, which was also returned on account of 'insufficient funds' on 10.10.1992, which is evidenced by Ex.P.7 also. A cheque could be represented many times within the period of its validity. After presentation and return, if a statutory notice has been issued, probably only thereafter, the representation and further cause of action on that basis should be described as not maintainable, in view of the fact, the first notice itself has given cause of action for filing a criminal complaint. In this case, the communication sent on behalf of the complainant, does not come within the ambit of Section 138(b) of the Act and therefore, representation of the cheque is not barred. When P.W.1 has given evidence, as averred in the complaint also, upon the instruction given by the drawer, the cheque was represented, the same was not challenged by the examination of the accused. In this way, it should be held, the second representation of the cheque for collection, is valid in the eye of law. After the second representation also, the cheque was not honoured. After the return, the complainant has issued a legal notice on 13.10.1992 as evidenced by Ex.P.2, which is in conformity with the provisions of law, no dispute. It is the case of the prosecution that this notice was acknowledged by the accused respondent on 23.10.1992 under Ex.P.13, which was confirmed by the communication from the Chief Post Master as seen from Ex.P.14. It is the case of the prosecution that this notice was acknowledged by the accused respondent on 23.10.1992 under Ex.P.13, which was confirmed by the communication from the Chief Post Master as seen from Ex.P.14. For this notice, no reply has been issued. 13. On the other hand, it is the case of the accused respondent, that he has not received the original of Ex.P.12., whereas, except Ex.P.5, he has not received any other notice. Thus, admitting the acknowledgment of Ex.P.5, which is not in conformity with Section 138(b) of the Act, an attempt was made to say that the notice is invalid. Further in the acknowledgment, the date is typed as 13.10.1992 i.e. the date of issue of the notice, where the accused had acknowledged. For this, an explanation was given by P.W.1, which is quite acceptable, ignoring the mistake viz., that while preparing the acknowledgment, while sending the notice, the date was typed as 13.10.1992. To come to a definite conclusion that the notice was received by the accused, there is ample evidence such as the certificate issued by the Postal Department. Not only that, as spoken by P.W.1 under Ex.P.16, Ex.P.12 notice was sent to the accused giving the correct address also. Therefore, it should be presumed, that the complainant has issued a notice to the accused in writing on 13.10.1992, which was received and acknowledged by the accused on 23.10.1992. If really the accused has not received the original of Ex.P.12 under Ex.P.13, he should have produced the document received by him under Ex.P.13, by examining himself also, as witness exposing that fact. Unfortunately, for the accused and fortunately for the complainant, he has not gone into the box, to say that he has not received Ex.P.12 under Ex.P.13, whereas he has received some other communication. In this way, accepting the oral evidence of P.W.1, P.W.13, P.W.14, and P.W.16, I should conclude that, there was a valid notice dated 13.10.1992, since it is in conformity with Section 138(b) of the Act. It is not the case of the accused respondent that Ex.P.12 is invalid, since it is not in conformity with the requirements of the Act. In this way, accepting the oral evidence of P.W.1, P.W.13, P.W.14, and P.W.16, I should conclude that, there was a valid notice dated 13.10.1992, since it is in conformity with Section 138(b) of the Act. It is not the case of the accused respondent that Ex.P.12 is invalid, since it is not in conformity with the requirements of the Act. Unfortunately, the learned trial Judge, for the reasons best known to him, ignoring the acceptable materials available on record, had entertained a doubt unnecessarily, as if the complainant has failed to prove the valid notice and the said mistake committed by the trial Court should be erased, by allowing the appeal. 14. The main thrust of the learned counsel for the respondent was, that P.W.1 has no authority to represent the complainant and therefore, the very filing of the complaint under his signature is invalid and in this view, the accused is entitled to an acquittal, as held by the trial Court, which is countered. By going through the provisions of law, as well as the resolution passed by the complainant company, I am unable to subscribe my view to the above said contention. 15. Section 142 of the Act prescribes conditions for taking cognizance of the offence and they are; the complaint should be in writing made by the payee or the holder in due course of the cheque. In this case, the cheque was drawn in favour of the complainant and he is the holder in due course of the cheque also. Thus, the complainant comes within the meaning of payee as well as holder in due course of the cheque. The Section contemplates, the complaint must be in writing made by the payee. Here, though the complainant is shown as the payee, the complaint was not signed by the payee, whereas it was signed by P.W.1, the Manager of the complainant company under authorisation, as averred in the complaint itself. The cause title of the complaint reads: "NEPC AGRO FOODS LTD, 36 Wallajah Road, MADRAS 600 002." Therefore, it could be said, without contradiction, that the payee alone has filed the complaint in writing, whether it is signed by the person authorised or not. In this way, in my considered opinion, the complaint comes within the meaning of Section of 142 of the Act and there is no defect in the complaint also. In this way, in my considered opinion, the complaint comes within the meaning of Section of 142 of the Act and there is no defect in the complaint also. Therefore, it may not be necessary to go into detail, whether Section 142 of the Act is complied with or not. However, a doubt should arise whether it is a complaint presented by the payee in writing before the Court, since payee himself had not signed. Only in this way, we have to see the authorisation or authority said to have been given to P.W.1. 16. Ex.P.1 is the extract of the minutes of the meeting of the Board of Directors of the company held on 31.10.1992 at the Registered Office of the Company, wherein it is resolved authorising Mr. Natarajan, the signatory to the complaint to sign the complaint to be filed against Mr. Nandagopal, the accused before the concerned court. The Board of Directors are competent to resolve authorising a person to sign a complaint, not challenged. P.W.1 has spoken about the resolution passed authorising him to file the complaint on behalf of the company. It appears, marking of Ex.P.1 was objected to. By going through the cross examination, I am unable to find even any suggestion challenging the resolution passed by the Board of Directors authorising P.W.1 to sign complaint and to present criminal complaint before the court concerned. Therefore, it could be safely concluded, that the resolution passed by the Board of Directors of the Company on 31.10.1992 authorising Natarajan is not under challenge. Thus, P.W.1 deriving authority on the basis of the resolution passed by the Board of Directors, is competent to sign the complaint on behalf of the payee/complainant, thereby favouring the requirements of Section 142 of the Act also. Hence, I should conclude, the complaint filed by the payee, signed by the authorised person on the basis of resolution, should be held as valid. 17. Section 193 of the Companies Act guides how minutes of all proceedings of every general meeting should be maintained, wherein it is said that the minutes should be entered in books kept for that purpose with their pages consecutively numbered. Further 193(1-B) of the Companies Act says, in no case, the minutes of proceedings of a meeting shall be attached to any such book as aforesaid by pasting or otherwise. Further 193(1-B) of the Companies Act says, in no case, the minutes of proceedings of a meeting shall be attached to any such book as aforesaid by pasting or otherwise. In the case on hand, the resolution passed is typed in the loose sheets and stitched as a bound book, thereby showing it is not entered in the book kept for that purpose, with their pages consecutively numbered. Thus, it is seen there is some violation in maintaining the minutes of the proceedings of the general meetings and of Board and other meetings. Taking advantage of this fact, a strenuous argument was made on behalf of the respondent that on the basis of Ex.P.1, which was not in accordance with Section 193 of the Companies Act, it should be held that since the minutes are not properly maintained, it will not confer any power upon P.W.1 to maintain a complaint. Though the argument was so attractive at the first instance, deep consideration of Section 193 and the subsequent sections which give presumption to the resolution, fails to convince me, to affix my seal of approval to the above said contention of the learned counsel for the accused. 18. In order to invalidate, if possible the resolution passed by the complainant company, as evidenced by Ex.P1, my attention was drawn to a decision of this Court in V.J. Balasundaram v. New Theatres Carnatic Talkies (1993 Company Cases (Vol.77) 324 and another decision in Micrometrics Engineers Pvt. Ltd. v. S. Munusamy (Mad) 465. In both the cases, when the resolution passed by the Board of Directors was challenged on the ground that Section 193 of the Companies Act is not complied with, it is held that no presumption is available under Section 195 of the Companies Act, when the presumption is not available under Section 193 of the Companies Act, since the said Section was not complied with. It is also true, that in both the cases, it is held, only if minutes book are maintained in accordance with the provisions of Section 193 and original minutes book is not produced, by producing the copy alone, no presumption could be claimed either under Section 193 or under Section 195 of the Companies Act. It is also true, that in both the cases, it is held, only if minutes book are maintained in accordance with the provisions of Section 193 and original minutes book is not produced, by producing the copy alone, no presumption could be claimed either under Section 193 or under Section 195 of the Companies Act. In the case on hand, as rightly submitted by the learned counsel for the appellant, the resolution passed by the Board of Directors, which is evidenced by Ex.P.1 spoken by P.W.1, not challenged, in the sense, there was no such resolution or that resolution has not authorised P.W.1 to sign in the complaint, which was filed as contemplated under Section 142 of the Act. Therefore, we have to see whether the non compliance of Section 193 is illegal, whether that itself would invalidate the resolution passed by the Board of Directors, if it is otherwise proper. 19. Section 193 of the Companies Act gives guidelines how the proceedings of the General Meetings of and Board and other meetings should be entered in the book, for which a book should be kept, with their pages consecutively numbered. As adverted supra, it also mandates no pasting or attaching additional sheets should be done. In the case on hand, it is the not the question of attaching additional sheet or pasting in the book. From the original resolution, it is seen, all the proceedings were fed in the computer and it seems after taking print outs, they were stitched together, thereby showing original resolutions were typed in the loose sheets. The procedure adopted by the complainant company appears to be not in accordance with Section 193 of the Companies Act. Therefore, if at all, if any presumption is sought under Section 194 or 195 of the Companies Act, it may not be available to the complainant and nothing more. 20. Section 194 of the Companies Act says that the minutes of the meeting kept in accordance with Section 193 shall be evidence of the proceedings recorded therein. It does not say, if the proceedings are not recorded as contemplated under Section 193, the resolution itself is invalid. 20. Section 194 of the Companies Act says that the minutes of the meeting kept in accordance with Section 193 shall be evidence of the proceedings recorded therein. It does not say, if the proceedings are not recorded as contemplated under Section 193, the resolution itself is invalid. In the same way, in Section 195 also, when presumption is sought on the basis of Section 193, it is said that presumption to be drawn, where minutes duly drawn and signed and kept in accordance with the provisions of Section 193. Here also, there is no negative provision invalidating the resolution on the basis of violation of Section 193. For the violation of Section 193, there is a penal provision and if at all, for that non compliance of Section 193, company could be prosecuted and nothing more. In this view of the matter, for the non compliance of Section 193, if at all, the company could be prosecuted and the resolution passed by the company cannot be invalidated, that too especially when the resolution is not challenged by the contesting party viz., in this case, the accused, who is also not entitled to challenge the same, since he is not in any way connected with the company affairs. Therefore, the decision relied on by the learned counsel for the accused/respondent may not come to his aid to non-suit the complainant. In this context, we have to see the purpose of the resolution in terms of Section 142 as well as in terms of Section 141 of the Act. 21. Section 141 of the Act deals the offences committed by companies, wherein directions are given, who is liable to be dealt with in cases of offences by companies. In Sub-section 2 of Section 141, it is said that if it is proved that the offence has been committed with the consent or connivance, or is attributable to, any neglect on the part of, any director, Manager, secretary or other officer of the company, they shall also be deemed to be guilty of that offence and shall be liable for punishment, thereby showing even in the case of company, a manager, who was responsible for the company, should be dealt with. But at the same time, when the question comes, who is competent to prefer a complaint, Section 142 says, the Court shall take cognizance of the offence only upon a complaint in writing made by the payee or the holder in due course of the cheque. Here, we do not find any reference about the company, such as available in Section 141, thereby showing only the payee or the holder in due course alone is competent to lodge a complaint in writing. In a case of company, the Board of Directors are competent to pass a resolution and vest power in a person and that person takes the role of payee or holder in due course of the cheque, only for limited purpose, based upon the resolution and in this way, P.W.1, who was authorised by the Board of Directors, has signed in the complaint, which was filed in the name of payee or who is the holder of the cheque also. Therefore, there is no violation of Section 142 in this case. Unfortunately, the trial Court, without considering the effect of resolution, taking the face value of Section 193 of the Companies Act, invalidated P.W.1 as if he is incompetent to represent the company, which is in my considered opinion legally unsustainable. For the foregoing reasons, I conclude that the complaint filed, signed by P.W.1, being the authority empowered under Ex.P.1 is well maintainable and the finding contra by the trial Court has to be erased. In this view, the appeal deserves acceptance and the same is accepted, resulting the following order. The appeal is allowed and the order of the acquittal of the respondent is set aside and the accused respondent is found guilty under Section 138 of the Act, for which he is directed to undergo S.I. for six months, in addition to pay a compensation of Rs.50,000/-, failing which directed to undergo three months S.I.