2010 Supreme(Bom) 1244

In the High Court of Bombay at Goa
THE HONOURABLE MR. JUSTICE N.A. BRITTO
Sri Balaji Agencies Pvt. Ltd.
Versus
Samudra Ropes Pvt. Ltd. & Others
CRIMINAL APPEAL NO.11 OF 2009
Decided on : 02-09-2010

Headnote:Negotiable Instruments Act, 1881 - Sections 138 and 142(a)-Dishonour of cheque-Complaint-Ratification of-To be done before accused entered his defence-Held-Want of authority of a person is a fundamental defect not a were irregularity-Such fundamental defect makes complaint not maintainable under Section 142(a) of Act.-Counsel has next submitted that the resolution dated 1.11.2008 now ratifies the filing of the complaint and therefore the defect of lack of authority would stand cured. In view it is rather too late in the day to produce such a notification ratifying the act of filing the complaint by a wrong person. Such a ratification ought to have been produced by the complainant before his evidence was completed and in any event before the close of the case of the complainant and before the accused entered his defence and certainly not after the accused has been acquitted. Counsel submits that an appeal is a continuation of trial and therefore ratification could be done even at appellate stage. Court is not inclined to accept this submission either, for reasons stated. Any ratification had to be done before the accused entered his defence and cannot be allowed to be done after the acquittal of the accused. Lastly, counsel submits that lack of authority is a curable irregularity under Section 465 of the Code. This submission also deserves to be rejected. Want of authority of a person is not a mere irregularity but a fundamental defect which makes the complaint itself not maintainable under Section 142(a) of the Negotiable Instruments Act. Court must not forget that the trial of the accused is essentially a criminal trial and the accused is entitled to take the benefit of any inherent weakness or defect in the case of the prosecution.

       Negotiable Instruments Act, 1881 - Sections 138 and 142(a) - Dishonour of cheque - Complaint - Acquittal of accused under Section 138 of Act - Appeal against - Controversy over filing of complaint - Complaint filed by Managing Director or company appellant - Held - Resolution of company-appellant not authorised Managing Director to file complaint on behalf of company - Fundamental defect of complaint not being cured by payee cannot be allowed to be used after acquittal of accused - Impugned judgment and order holding complaint not maintainable under Section 142(a) of Act not suffers from any infirmity and illegality - Warrants no interference - Confirmed - Appeal dismissed. - 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. Allowing the said application and the production of the said resolution would necessarily involve giving a further opportunity to the accused for cross-examination as well. The complainant could have produced the said resolution before the Courts below. No good reason has been assigned for its non-production. The application is nothing short of an attempt for retrial and change of the nature of the case against the accused. A fundamental defect of a complaint not being filed by the payee cannot be allowed to be cured after the acquittal of the accused. Therefore, this is not a fit case to allow the production of the said Resolution after the accused has been acquitted.

       Counsel has next submitted that the resolution dated 1.11.2008 now ratifies the filing of the complaint, and, therefore, the defect of lack of authority would stand cured. In view, it is rather too late in the day to produce such a notification ratifying the act of filing the complaint by a wrong person. Such a ratification ought to have been produced by the complainant before his evidence was completed and in any event before the close of the case of the complainant and before the accused entered his defence and certainly not after the accused has been acquitted. Counsel submits that an appeal is a continuation of trial, and, therefore ratification could be done even at appellate stage. I not inclined to accept this submission either, for reasons stated. Any ratification had to be done before the accused entered his defence and cannot be allowed to be don after the acquittal of the accused. Lastly, Shri Sardessai, submits that lack of authority is a curable irregularity under Section 465 of the Code. This submission also deserves to be rejected. Want of authority of a person is not a mere irregularity but a fundamental defect which makes the complaint itself not maintainable under Section 142(a) of the N.I. Act, 1881.