2009 ALL MR (Cri) 3617
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N. A. BRITTO, J.
The Goa State Co-op. Bank Ltd. - Appellant
Vs.
M/s. Kurtarkar Traders - Respondent
Criminal Appeal Nos.35, 50 & 55 of 2009
Decided on : 15th October, 2009. .
Negotiable Instruments Act, 1881 - Sections 138 and 142 - Multi State Co-operative Societies Act, 2002, Section 52 - Authorization to file complaint - Managing Director allowed branch managers to lodge complaints - Witness a branch manager also stated he was having authority to appoint power of attorney as specified in resolution of board - Complaint dismissed by trial Court holding letter of authority are simple letters do not require power of attorney to file complaint - Bank might have good cases of merit but the cases are bound to fail in absence of proper authority to officers to file complaints - Managing Director as chief executive fully authorized to appoint persons to sue - He is not empowered to file complaints as he himself does not have this power - No resolution by complainant to prosecute defaulters. - The contention that the authority letters authorized to file complaints has no meaning. The complainant as a body corporate can act only by resolutions passed by the directors at its meeting. There was no resolution passed by the complainant in favour of its Managing Director authorising him to appoint any person to prosecute the defaulters, whose cheques, bounced. There was no resolution passed by the Bank in favour of the said Sawaikar and the said Kavlekar, authorising the former to file complaints and/or depose in support of the same. Power to lodge complaints in their favour could have been given only by a resolution of the Board of Directors. There was none given and non was produced. It was clearly held in Ashok B. Pagui (supra) that a complaint even by a director of a company was not maintainable without there being a resolution by the Board of Directors. Section 52(i) of the said Act only authorizes a Managing Director to sue or be sued i.e. to initiate or defend a civil action only. The cases at hand were clearly covered by the decisions of this Court in the case of Alka Toraskar (supra); Ashok B. Pagui 2007 (2) Bom CR (Cri) 1 (PB) : 2007 DGLS (Cri) soft 4 : 2007 (2) Goa LR 192 : 2007 All MR (Cri) 2238; Chico Ursula D’Souza (supra), as well as Om Shakti Schedule Castes (supra). The view held by the Courts below that both the said witnesses were sufficiently not authorized by the complainant either to lodge complaint/s and/or depose on behalf of the complainant cannot be faulted.
In the circumstances, therefore, I find that there is no merits in these appeals, and, consequently the same are hereby dismissed.
Heard learned Counsel on behalf of both the parties.
2. These appeals can be conveniently disposed of by this common judgment.
3. Some facts are required to be stated to dispose of the same.
4. The appellant-complainant is a Multi State Co-operative Society, governed by the Multi State Co-operative Societies Act, 2002. The complainant had prosecuted the accused in three complaint cases namely CC Nos.366/0A/05, 486/0A/051 and 487/0AI05 for dishonour of certain cheques issued by the respondent/accused towards the payment of its liability towards the complainant on account of certain loans taken by the respondent accused.
S. In first case, the cheque is for Rs.10,00,000/- dated 7.6.2005. In the second case the cheque is for Rs.15,00,000/- dated 23.8.2005 and in the third case the cheque is for Rs.15,00,000/- dated 07.09.2005.
6. There is no dispute that the complaints were filed by the complainant which is a Multi State Co-operative Society and all the three complaints were filed through Shashikant R. Sawaikar, the acting manager of Curti Branch of the said complainant who had also filed an affidavit of verification. The said Shashikant Sawaikar was examined on behalf of the complainant in the first and third case. Pramod Kavlekar was examined on behalf of the complainant in the second case. In the second case, the said Shashikant Sawaikar was examined as PW-2. In all the three cases, the authority of the said Shashikant Sawaikar as well as of the said Pramod Kavlekar who filed the complaints and/or deposed on behalf of the complainant was questioned by the accused.
7. There is no dispute that the subject cheques when presented for payment were returned dishonoured for want of sufficient funds in the account of the accused and the complainant having sent the statutory notices, the accused replied the same, and, at least in one case admitting the liability of the complainant and seeking time to make the payment. However, the main question in these appeals is whether the said Shashikant Sawaikar or for that matter the said Pramod Kavlekar had sufficient authority to file the complaints and/or to depose on behalf of the complainant. At this very juncture, reference could be made to the decision of the Apex Court in the case of Mis. Shankar Finance & Investments Vs. State of A.P. and others, (2009(4) ALL MR 480), wherein the Apex Court has stated that once the complaint is in the name of the payee and is in writing, the requirement of Section 142 of the Act are complied with and the question as to who should represent the payee, where payee is a company, or how payee should be represented, where payee is sole proprietory concern, is not a matter which is governed by Section 142, but by the general law.
8. The said Shashikant Sawaikar as well as the said Pramod Kavlekar who were examined in the respective cases, in support of their authority, produced two letters of authority dated 25.8.2005 and 10.1.2008. By the first letter of authority Shri. Anant Vithal Shinde, the Managing Director (In-charge) of the complainant gave authority to Shashikant Sawaikar and by the second letter of authority dated 10.1.2008 Shri. Ladu Raya Gaonkar, again the Managing Director (In-charge) of the complainant gave authority to Pramod Krishna Kavlekar. The said authority letters read as follows :
"I, SHRI. ANANT VITHAL SHINDE, major of age, the Managing Director (Incharge) of the Goa State Co-op. Bank Ltd., Head Office, "SAHAKAR SANKUL", Patto Plaza, EDC Complex, Patto, Panaji Goa, on behalf of the Bank hereby authorise Shri. SHASHIKANT SAWAIKAR, Branch Manager of Curti (Pond a) Goa Branch of the Bank to represent me in the Court of Judicial Magistrate, First Class, Civil Courts in Goa, to sign and execute documents such as Complaints, Plaints, Affidavits, Written Statements, Vakalatnama and depose on behalf of the Bank and on behalf of me in cases filed by the Bank and in cases filed by the Bank and in cases filed against the Bank by any party.
I, SHR
Login now and unlock free premium legal research
Login to SupremeToday AI and access free legal analysis, AI highlights, and smart tools.
Login
now!
India’s Legal research and Law Firm App, Download now!
Copyright © 2023 Vikas Info Solution Pvt Ltd. All Rights Reserved.