Research › Search › Judgment

Punjab High Court · body

2023 DIGILAW 1247 (PNJ)

DPGC Finance Ltd. v. Jaswant Singh

2023-03-29

VIKRAM AGGARWAL

body2023
JUDGMENT Vikram Aggarwal, J. CRM-13612 of 2017. For the reasons mentioned in the application as well as arguments addressed, the same is allowed and resolution dated 08.08.2013, Annexure A-3 is taken on record subject to just exceptions. CRM-A-599-MA of 2016. Heard learned counsel for the applicant. The appeal shall have to be heard on merits. The application is therefore allowed. Registry is directed to register the present case as a criminal appeal. Main case: Challenge in the present appeal is to the judgment dated 11.01.2016 passed by the Judicial Magistrate First Class, Baba Bakala Sahib, vide which the complaint filed by the appellant/complainant under section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') was dismissed. 2. The facts, as emanating from the petition, are that the appellant/complainant instituted a complaint under Section 138 of the Act against the respondent/accused. The case of the appellant/ complainant was that it was engaged in the business of extending financial facility to prospective customers and was also engaged in the business of extending various loans to such customers. The respondent/accused approached the appellant and requested him to issue a loan to enable him to purchase a vehicle make Toyota Innova. An agreement was executed. With a view to discharge his legal liability/debt, the respondent/accused gave a post dated cheque bearing No.998152 dated 16.07.2013 for a sum of Rs. 3,38,225/- drawn on OBC Bank in favour of the appellant. However, the same was dishonoured on 17.07.2013, leading to the filing of the complainant. 3. After the preliminary evidence, the respondent/accused was summoned vide order dated 06.12.2015. The respondent/accused appeared and notice of the accusation dated 19.05.2015 was served upon him. He pleaded not guilty and claimed trial. During the trial, the appellant/complainant examined four witnesses apart from documentary evidence which had been produced on record in the preliminary evidence. In the defence, the accused produced one witness. 4. The trial Court, after discussing the merits of the case, dismissed the complaint on the ground that the resolution dated Ex.C6 produced by the appellant/complainant was dated 09.08.2013 and authorized one Bhawuk Handa to institute the civil and criminal cases against one Harjit Singh son of Inder Singh, whereas the accused in the present case was Jaswant Singh son of Jarnail Singh. On this short ground, the appellant/complainant was non-suited. 5. On this short ground, the appellant/complainant was non-suited. 5. Aggrieved by this view taken by the trial Court, the present appeal was preferred. 6. I have heard learned counsel for the parties. 7. Learned counsel for the appellant/complainant has submitted that the hyper technical view taken by the trial Court, is not sustainable. He has referred to the resolution dated 08.08.2013 annexed with the paper book and has submitted that inadvertently, resolution dated 09.08.2013 to file complaints/proceedings against Harjit Singh son of Inder Singh was attached with the complaint because a number of cases were being instituted by the appellant/complainant. It has been submitted that Bhawuk Handa had duly been authorized vide resolution dated 08.08.2013 to institute the complaint in question against Jaswant Singh son of Jarnail Singh. It has been submitted that the learned trial Court erred in dismissing the complaint on this short ground without giving an opportunity to the appellant/complainant to cure the defect. Learned counsel has submitted that the trial Court should have decided the case on merits by giving an opportunity to the appellant/complainant to cure this defect rather than dismissing the complaint on technicalities. In support of his contentions learned counsel has relied upon judgment of the Madras High Court in Modern Denim Limited v. Lucas TVS Limited 1999(4) RCR (Criminal), 109, and judgment of Andhra Pradesh High Court in Water base Limited, Chennia v. Karuturu Ravendra, Proprietor, M/s Butterfly Aquatech, Kakinada, 2002 (2) RCR (Criminal) 757. 8. On the other hand, learned counsel for the respondent/accused has supported the decision of the trial Court stating that once there was no valid authorization to the resolution in favour of Bhawuk Handa, the complaint was liable to be dismissed and the same was rightly dismissed by the trial Court. Reliance has been placed upon judgment of the Hon'ble Apex Court in National Small Industries Corporation Limited v. State (NCT of Delhi) and others, 2009(1) RCR (Criminal) 181. 9. I have considered the submissions made by learned counsel for the parties and have also perused the judgment. There was no necessity to summon the records because no reference to evidence etc., has been made and arguments have been addressed only on a technical issue. The facts are not in dispute. 9. I have considered the submissions made by learned counsel for the parties and have also perused the judgment. There was no necessity to summon the records because no reference to evidence etc., has been made and arguments have been addressed only on a technical issue. The facts are not in dispute. The only issue to be determined is as to whether the trial Court was justified in dismissing the complaint on the ground of there being no valid authorization in favour of Bhawuk Handa who had filed the complaint under Section 138 of the Act on behalf of the appellant/complainant. On first principles also, the answer to this would be in the negative. It is settled law that the matters should be decided on merits and not on mere technicalities. Even if there was some defect in the authorization or assuming there was no authorization at all, one opportunity should have been granted to the appellant/complainant to cure the defect. There is no defence between civil and criminal proceedings in so far as this basic issue is concerned. In the considered opinion of this Court, the trial Court committed an error by not giving an opportunity to the applicant/appellant to cure the defect. A three judges Bench of the Hon'ble Apex Court decided this very question in the case of M/s Haryana State Corporation Supply and Marketing Federation Limited v. M/s Jayam Textiles and another, 2014 (4) SCC 704 . In this case not only two complaints but even the appeals had been dismissed solely on the ground that the authorization was not produced by the complainant/appellant. A stand was taken by the complaint/appellant before the Hon'ble Apex Court that there was an authorization from the board of directors but unfortunately, the same had not been filed along with the complaint. It was contended that an opportunity to the complainant/appellant should have been provided by the Courts to furnish the authorization. The Hon'ble Apex Court came to the conclusion that if the Courts below were not satisfied, an opportunity ought to have been granted to the complainant/appellant to place the document containing authorization on record and proved the same in accordance with law. It was held that this procedure was required to be adopted because procedural defects and irregularities, which are curable, should not be allowed to defeat substantive rights or to cause injustice. It was held that this procedure was required to be adopted because procedural defects and irregularities, which are curable, should not be allowed to defeat substantive rights or to cause injustice. It was also held that procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. No doubt, the complainant/appellant in that case was a public sector undertaking whereas in the present case, it is a private company. However, this in itself, in the considered opinion of this Court, will not make a difference as the principles of law will remain the same. The Hon'ble Apex Court held as under:- "Having heard learned counsel for the parties and after perusing the material on record, we find that admittedly authorisation by the Board of Directors of the appellant-Federation was not placed before the Courts below. But, we may notice that a specific averment was made by the appellant-Federation before the learned Judicial Magistrate that the said General Power of Attorney has been filed in connected case being CC No. 1409/1995, which has neither been denied nor disputed by the respondents. In any case, in our opinion, if the Courts below were not satisfied, an opportunity ought to have been granted to the appellant-Federation to place the document containing authorisation on record and prove the same in accordance with law. This is so because procedural defects and irregularities, which are curable, should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use." 10. In view of the clear law laid down by three-Judges Bench of the Hon'ble Apex Court, the other judgments relied upon by the parties would pale into insignificance. 11. In view of the aforesaid discussion, this Court is of the opinion that the view taken by the trial Court is not sustainable. Under the circumstances, the present appeal is allowed. In view of the clear law laid down by three-Judges Bench of the Hon'ble Apex Court, the other judgments relied upon by the parties would pale into insignificance. 11. In view of the aforesaid discussion, this Court is of the opinion that the view taken by the trial Court is not sustainable. Under the circumstances, the present appeal is allowed. The impugned judgment dated 11.01.2016 passed by the Judicial Magistrate First Class, Baba Bakala Sahib, is set aside and the matter is remitted to the trial Court with a direction to the trial Court to take a fresh decision by giving an opportunity to the applicant-appellant to produce the authorization in its favour and then take a fresh decision in accordance with the procedure and the law. Parties shall appear before the trial Court on 10.04.2023 at 10.00 A.M.