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2012 DIGILAW 558 (BOM)

Jabirsha Latifshah v. Shegaon Shri Agrasen Sahakari Path Sanstha Maryadit, Shegaon

2012-03-13

M.L.TAHALIYANI

body2012
Judgment Both Criminal Revision Applications are being decided by common judgment as they arise out of one and the same judgment passed by the learned Additional Sessions Judge Akola District in Criminal Appeal No. 38/2006. 2. The appellant in the said appeal is the applicant in Criminal Revision Application No. 146/2011 and respondent no.1 in the said Criminal Appeal is the applicant before this Court in Criminal Revision Application No.164/2011. 3. The applicant in Criminal Revision Application No.146/2011 and the applicant in Criminal Revision Application No.164/2011 will be hereinafter referred to as "applicant" and "non-applicant" respectively. The applicant and non-applicant feel aggrieved by the judgment of the learned Additional Sessions Judge inasmuch as the applicant is aggrieved by the enhanced amount of fine imposed on him by the Appellate Court and the non-applicant feels aggrieved by reduction of substantive sentence by the Appellate Court. 4. The applicant was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act by the judgment and order dated 4th December, 2006 passed by the Judicial Magistrate First Class, Akot and was sentenced to suffer simple imprisonment for eight months and to pay a fine of Rs. 3000/-only in default to undergo simple imprisonment for three months. The applicant had filed appeal before the Appellate Court. The non-applicant had not filed any revision against the said order. The appeal was heard on merits. The learned Additional Sessions Judge modified the order. The conviction was maintained and the applicant was sentenced to suffer simple imprisonment till rising of the Court. The applicant was further directed to pay a sum of Rs. 45,000/-to the non-applicant by way of compensation under Section 357(3) of the Code of Criminal Procedure. It was directed that in the event of non-payment of compensation, the applicant shall undergo simple imprisonment for a period of eight months. 5. It is submitted on behalf of the applicant that the learned Magistrate could not have issued process for the offence punishable under Section 138 of the Negotiable Instruments Act as the Branch Manager of the Shegaon Shri Agrasen Sahakari Path Sanstha Maryadit, Shegaon, (for short "Society") has not submitted any authority letter before the Trial Court. There is no averment in the complaint to the effect that the Branch Manager was authorised by the Society by Resolution of the Managing Committee. There is no averment in the complaint to the effect that the Branch Manager was authorised by the Society by Resolution of the Managing Committee. It is admitted position that this issue was never raised before the Trial Court. The issue was raised for the first time before the Appellate Court. The Appellate Court has rejected the argument on the ground that unless the issue of competence of the Branch Manager to represent the complainant was raised before the Trial Court, the same could not have been raised before the Appellate Court. 6. Mr. Mohta has relied upon three judgments of this Court and has submitted that it is not an irregularity but a fundamental defect in the complaint and therefore it could be raised before the Appellate Court and can be raised before this Court also. The judgment relied upon by Mr. Mohta are reported at 2010 (2) Bom. C.R. (Cri.) 88 (VPK Urban Cooperative Society Limited Vs. Shaikh Rucnoddin Mohammed and another, 2006 (2) Bom. C.R. (Cri.) 717 (Alka Toraskar Vs. Vaishya Urban Coop. Credit Society Limited and another) and 2008 (2) Bom. C.R. (Cri.) 581 (EPC Industries Ltd Vs. State of Maharashtra and another). 7. I have gone through all the judgments. What is important to be found in the judgment of Justice N.A. Britto reported at 2011 (1) AIR Bom R 306 (Balaji Agencies Pvt. Ltd., Goa Vs. Samudra Ropes Pvt. Ltd., Goa and ors.) is at para 8. The relevant portion can be reproduced as under:- "On the facts of this case, there is no good reason given on behalf of the complainant as to why the Resolution dated 28.5.1998 was not produced before the trial Court or for that matter before the first appellate Court when the issue of authority of the said Shri Usgaonkar was raised." 8. It is thus clear that Criminal Appeal before the Goa Bench of this Court cited supra was decided on the facts that case. Moreover, what is pertinent to note is that in the said case, issue of authority of the person who had filed complaint was raised before the Trial Court. The issue of competence of Branch Manager was not raised before the Trial Court. In my considered opinion, this judgment and two other judgments do not support the case of Mr. Mohta in any manner. The issue of competence of Branch Manager was not raised before the Trial Court. In my considered opinion, this judgment and two other judgments do not support the case of Mr. Mohta in any manner. I am of the considered opinion the view expressed by the Appellate Court that issue of competence of the person filing the complaint should have been raised before the Trial Court is correct. 9. In addition to what has been stated by me here-in-above, I may refer to the judgment of Hon'ble Supreme Court reported at 2009 (4) Bom.Cr. 463 (National Small Industries Corporation Ltd. Vs. State (NCT of Delhi) and others). The relevant portion of para 10 of the judgment can be reproduced as under:- "Section 142 NI Act requires a complaint under section 138 of that Act, to be made by the payee (or by the holder in due course). It is thus evident that in a complaint relating to dishonour of a cheque (which has not been endorsed by the payee in favour of any one), it is the payee alone who can be the complainant. The NI Act only provides that dishonour of a cheque would be an offence and the manner of taking cognizance of offence punishable under Section 138 of that Act. However, the procedure relating to initiation of proceedings, trial and disposal of such complaints, is governed by the Code. Section 200 of the Code requires that the Magistrate, on taking cognizance of an offence on complaint, shall examine upon oath the complainant and the witnesses present and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses. The requirement of section 142 of NI Act that payee should be the complainant, is met if the complaint is in the name of the payee. If the payee is a company, necessarily the complaint should be filed in the name of company. Section 142 of NI Act does not specify who should represent the company, if a company is the complainant. A company can be represented by the employee or even by a non-employee authorised and empowered to represent the company either by a resolution or by power of attorney." (emphasis supplied) 10. In the first place, since the issue was not raised before the Trial Court, the same could not have been raised before the Appellate Court. A company can be represented by the employee or even by a non-employee authorised and empowered to represent the company either by a resolution or by power of attorney." (emphasis supplied) 10. In the first place, since the issue was not raised before the Trial Court, the same could not have been raised before the Appellate Court. Secondly, since the complaint has been filed by Branch Manager of Credit Society, he was not under obligation to produce the resolution of the 'Society' authorizing him to file complaint. 11. The applicant has not raised any other issue in the present revision application and therefore, I am not required to go into details of other aspects of the case. I do not find any merit in the revision application. 12. As far as Criminal Revision Application No.164/2011 is concerned, it may be stated here that since the fine amount imposed by the trial Court was meagre amount of Rs. 3000/-the Appellate Court has taken just and proper decision by directing the applicant to pay compensation of Rs. 45,000/-. The view taken by the Appellate Court appears to be reasonable and based on the facts on record. I do not find any serious infirmity in the order of the Appellate Court which, may require interference in revisional powers of this Court. The Revision Application No.164/2011, therefore, needs to be dismissed. Hence, the following order: Both Criminal Revision Applications are dismissed. The order of the learned Appellate Court is maintained. The learned Trial Court to take necessary steps for compliance of the said order. At this stage, learned counsel for the applicant prays for four weeks' time as he is considering to move the Hon'ble Supreme Court. Learned counsel for the applicant prays for stay on the order of the trial Court for a period of four weeks. I do not find any substance in the contention of the learned counsel for the applicant, as the matter is unreasonably delayed. In fact, a very lenient view is taken by the appellate Court. Hence, the prayer is rejected. The amount deposited by the applicant in this Court during pendency of Criminal Revision Application No.146/2011 shall be paid to the non-applicant (applicant in Criminal Application No.164/2011) with immediate effect. In fact, a very lenient view is taken by the appellate Court. Hence, the prayer is rejected. The amount deposited by the applicant in this Court during pendency of Criminal Revision Application No.146/2011 shall be paid to the non-applicant (applicant in Criminal Application No.164/2011) with immediate effect. The amount deposited by the applicant in the Trial Court shall be paid to the non-applicant (applicant in Criminal Application No.164/011) immediately on the non-applicant's making such prayer before the Trial Court.