IMPORTANT POINT
The main legal point established in the judgment is the importance of proving authorization and the mode of proof of documents under Section 138 of the Negotiable Instruments Act.

JUDGMENT :

1. Heard learned Senior Advocate Shri Ponda for the Complainant and learned Advocate Shri Satyanarayanan for Respondent No.2 – original accused.

2. It is true that while granting leave on 27th March 2023, this Court has crystalised the issue involved in this Appeal. Though the Court of Metropolitan Magistrate has given findings to point Nos.2 and 3 in favour of the complainant, learned Magistrate has acquitted the Respondent – Accused as point No.1 was answered against the complainant.

3. Point No.2 pertains to proof of liability whereas, Point No.3 pertains to service of demand notice . The trial Magistrate has observed ‘the liability is proved’. The relevant observations find place in paragraph Nos.21 to 24 whereas, learned Magistrate has dealt with in Issue No.3 on the point of notice and its service in paragraph Nos.25 to 34. Whereas, failure of the complainant to prove the authorization has been dealt with in Paragraph Nos.9 to 17.

4. It is submitted during the arguments by learned Advocate Shri Satyanarayanan that the findings by the trial Court on the point of liability and receipt of notice are not challenged and he has restricted his arguments only by supporting the findings of the trial Magistrate in respect of ‘non-proving of the authorization’.

5. In view of the same, I have heard both of them on the point of correctness of findings to Point No.1. So the issues involved in this Appeal are :--

a. “whether the complainant company has proved their representative C.W. No.1 was authorised by them to give evidence before the court” ?

b. “whether the trial court has committed wrong in discarding the oral and documentary evidence”?

Submission for Appellant

6. According to Mr. Ponda, there are various circumstances available on record and if considered together, it can safely be concluded “authorisation is proved”. According to him, trial Court has not appreciated them properly by overlooking to the view expressed by Supreme Court. This Court can certainly correct the mistake. He invited my attention to the following averments:-

(a) The averments in the affidavit of examination-in-chief sworn by witness and more specifically paragraph No.2 (page 41) of the paper-book.

(b) It is the affidavit of one Mr. Hashim Abdul Razak, Chairman and Authorized Representative of the Complainant – Company.

7. He submitted that there is a categorical statement about the production of the two documents. There is also categorical statement that ‘their certified true copies are also produced and the witness has requested to verify them with the original and then original may be returned to the Complainant – Company’. Such reference finds place in paragraph No.2.

8. He invited my attention to Page No.8 of the paper-book. They are nothing but the remarks made by the learned Magistrate. It records the following facts:-

(a) Further examination-in-chief of C.W. 1 – Hashim Abdul Razak and further cross-examination was adjourned due to Court time over.

(b) The documents (certified) verified earlier were exhibited today (i.e. 24/06/2016). It consists of various documents. Only two documents are relevant for deciding the issue involved. They are as follows:-

(i) Original true extract of Board Resolution dated 2nd December 2010;

(ii) Certified true copy of the minutes book.

They are marked as Exh.‘P-2’ and Exh. ‘P-3’ as stated in paragraph 2 of the affidavit. (Trial Court marked them Exhibit as Exh.11 and Exh.12)

9. It is his further contention that when this witness was cross-examined, the averments made in paragraph 2 about reference of ‘documents and production of original and of certified copy’ were not challenged during the cross-examination.

10. He further invited my attention to the statement recorded under Section 313 of Code of Criminal Procedure on page 104 and more specifically answer to Question Nos.2 and 5 which reads thus:-

Question No. 2 reads thus:

“It has come in the evidence of Mr. Hashim Abdul Razak–CW1 that, he is Chairman and Authorized Repr