The issue of competence should have been raised before the Trial Court and the complaint should be filed in the name of the payee.

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. 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