Bombay High Court
Atanu Anilkumar Mandal vs Antul Latif Kazi on 24 June, 2025
2025:BHC-AUG:15875
2-CriminalAppeal-463-2007.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 463 OF 2007
1. Atanu s/o Anilkumar Mandal,
Age 39 years, Occ. Service, Manager,
[Retail Saless, Indian Oil Corporation Limited],
Jalgaon presently at Aurangabad,
G.P.A Holder of Indian Oil Corporation Limited
.... Appellant
VERSUS
1. Mrs. Antul Latif Kazi,
Age 65 years, Occu. Business,
Prop. of National Auto Service,
R/o. National High Way No.6,
Nashirabad, Tq. and Dist. Jalgaon.
2. The State of Maharashtra,
Through Nashirabad Police Station,
Dist. Jalgaon.
[added as per leave granted by the Hon'ble
Court it's order dt. 27.09.2022]
..... Respondents
Appearance :
Mr. A. P. Bhandari, Advocate for the Appellant.
Mr. Rajendra N. Chavan, Advocate for Respondent No.1.
Mr. D. J. Patil, APP for Respondent No.2 - State.
_________________________________________________________________
CORAM : NEERAJ P. DHOTE, J.
Reserved On : 29th April, 2025
Pronounced On : 24th June, 2025
JUDGMENT :
1. This is an Appeal fled under Section 378 [4] of the Code of
Criminal Procedure, 1973 [hereinafter referred to as ‘Cr.P.C‘] against
the Judgment and Order dated 04/05/2007, passed by the learned
Judicial Magistrate, First Class [2nd Court], Jalgaon [hereinafter referred
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2-CriminalAppeal-463-2007.odt
to as ‘the learned Trial Court’], in Summary Criminal Case
No.4297/2002, acquitting Respondent No.1 / Accused for the ofence
punishable under Section 138 of the Negotiable Instruments Act, 1881
[hereinafter referred to as the ‘N. I.’ Act].
2. The facts giving rise to the present Appeal are as under :
[I] The Appellant fled the above referred Complaint before the
learned Trial Court contending that, he was working as a Deputy
Manager [Retail Sales] with the Indian Oil Corporation Limited,
Jalgaon, [hereinafter referred to as ‘the Corporation’] which was
registered. The Registered Ofce of the Corporation was situated at
Bandra [East], Mumbai and the Bulk Depot of Corporation was situated
at Bhadli, P.O. Nashirabad, Jalgaon, from where, the diesel, petrol and
oil etc. used to be supplied to the various dealers. Respondent No.1
was a dealer at Nashirabad. The lubes and grease were supplied on
credit to Respondent No.1, against which, a post-dated Cheque
No.901554 drawn on the Bank of Maharashtra, dated 31/03/2002
amounting to Rs.4,65,000/- was issued by Respondent No.1 in favour of
the Corporation. The said Cheque was deposited with the Banker of
Corporation i.e. the State Bank of India, M.I.D.C. Branch, Jalgaon, which
came to be dishonoured on 03/04/2002 with a remark as ”Exceeds
Arrangement”.
[II] The notice was issued on 15/04/2002 by the Registered Post with
Acknowledgment Due [hereinafter referred to as ‘R.P.A.D.’] to
Respondent No.1 within ffteen [15] days from returning of the memo
by the Bank along with the Cheque. The said notice was received by
Respondent No.1. However, Respondent No.1 did not pay the amount
of Cheque, which was demanded by the said notice. Hence, the
Complaint was fled for the ofence punishable under Section 138 of
the N. I. Act and the necessary documents were fled along with
Complaint.
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[III] The learned Trial Court issued process against Respondent No.1.
The learned Trial Court recorded the particulars for the ofence against
Respondent No.1 below Exhibit – 20, which was denied and
Respondent No.1 did not plead guilty. The Appellant fled the
Evidence Afdavit below Exhibit – 27 and he was cross-examined on
behalf of Respondent No.1. The Cheque, Bank Memo, Communication
issued by the Corporation, Acknowledgment Due Receipt,
Acknowledgment Card, Copy of General Power of Attorneys dated
28/09/2000 and 10/05/2005 and the Delivery Challan of the
Corporation were brought on record from Exhibits – 43 to 47 and 57.
The Corporation examined the Depot Manager as Witness No.2, who
was also examined on behalf of Respondent No.1. The Appellant
below Exhibit – 53 fled a Purshis closing the evidence. The learned
Trial Court recorded the statement of Respondent No.1 under Section
313 of Cr.P.C below Exhibit – 54. Respondent No.1 denied the case of
Appellant. It was the defence that, three [3] blank Cheques, which
were given as the security, were misused and the lubes and grease
were not supplied by the Corporation. After hearing both the sides
and on appreciating the evidence available on record, the learned Trial
Court passed the impugned Judgment and Order as referred above in
Paragraph No.1.
3. It is submitted by the learned Advocate for the Appellant
that, the lubes and grease were supplied by the Corporation to
Respondent No.1, against which, the Cheque was issued and,
therefore, it is clearly established that, the Cheque was issued for
legally enforceable debt. The Appellant examined the Witnesses in
support of their case. The subsequent Power of Attorney refers to the
delegation of powers to the Appellant and, therefore, there was
ratifcation of the act of the Appellant in fling the Complaint pursuant
to Section 196 of the Indian Contract Act, 1872 [hereinafter referred to
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as ‘the said Act’]. Respondent No.1 had preferred an Application
before the learned Trial Court praying for time to pay the dues. The
learned Trial Court did not apply mind and passed the impugned
Judgment and Order. In support of his contention, he cited the
following Judgments :
[i] National Small Industries Corporation Ltd. Vs. State
[NCT of Delhi] and Ors. ; 2009 AIR SCW 713 ;
[ii] Jugraj Singh and Another Vs. Jaswant Singh and
Others ; 1970 STPL 848 SC ;
[iii] Rohitbhai Jivanlal Patel Vs. State of Gujarat and Anr. ;
2019 STPL 3096 SC ;
[iv] Doshi Brothers, Mumbai Vs. State of Maharashtra and
Others ; 2019 STPL 13594 Bombay ;
[v] M/s TRL Krosaki Refractories Ltd. Vs. M/s SMS Asia
Private Limited and Anr. in Criminal Appeal No. ___ of
2022 [Arising out of SLP (Cri.). No.3113 of 2018) ;
4. It is submitted by the learned Advocate for Respondent
No.1 that, no Power of Attorney was fled along with the Complaint.
The initial Power of Attorney is silent regarding authorization to the
Appellant to fle the Complaint. The subsequent Power of Attorney is
silent in respect of the case details and so, there was no ratifcation.
The Appellant fled the Complaint in his own name and in his personal
capacity. The Complaint was not fled in the companies’ name. There is
no evidence to show that, the original person, who delegated the
powers, was having the powers to do so. The Appellant had no
personal knowledge of the factual aspects of the matter. The notice,
which was issued by some other person named Mr. Bhadli, was not the
proper notice as there was no specifc demand of the amount. Merely
seeking time by Respondent No.1 to pay the amount will not amount
to accepting the liability. The initial burden is on the Complainant. The
material was not delivered to Respondent No.1 and the Cheques, which
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were deposited by the Corporation, were deposited by way of security.
As there was no legal authorization to fle the Complaint and no legally
enforceable debt, the learned Trial Court has rightly passed the
impugned Judgment and Order of acquittal. In support of his
contention, he cited the following Judgments :
[i] M/s. Satish and Company Vs. M/s. S. R. Traders and
Others ; 1998 CRI. L. J. 419 ;
[ii] A. C. Narayanan and Another Vs. State of
Maharashtra and Others ; 2013 DGLS (SC) 748 ;
[iii] Milind Shripad Chandurkar Vs. Kalim M. Khan and
Anr. ; 2011 AIR SCW 1773 ;
[iv] Gamini Bala Koteswara Rao and Others Vs. State of
Andhra Pradesh Through Secretary ; [2009] 10 SCC
636 ;
5. Before considering the evidence available on record, the
Judgments cited by both the sides are considered.
6. In National Small Industries Corporation Ltd. Vs. State (NCT
of Delhi) and others [Supra], question for consideration in the Appeal
was, ‘where a complaint in regard to dishonour of a cheque is made by a
Government company, represented by its ofcer who is a public servant,
whether the exemption made under clause (a) of the proviso to section
200 of Code of Criminal Procedure, ( ‘Code’ for short) is available ?
6.1. The relevant Paragraph Nos.10, 11, 13 and 14 are
reproduced below :
“10. The term ‘complainant’ is not defned under the Code. Section 142,
NI Act requires a complaint under Section 138 of that Act, to be made by
the payee (or by the holder in due course). It is thus evident that in a
complaint relating to dishonour of a cheque (which has not been
endorsed by the payee in favour of anyone), it is the payee alone who can
be the complainant. The NI Act only provides that dishonour of a cheque
would be an ofence and the manner of taking cognizance of ofences5
2-CriminalAppeal-463-2007.odtpunishable under Section 138 of that Act. However, the procedure
relating to initiation of proceedings, trial and disposal of such complaints,
is governed by the Code. Section 200 of the Code requires that the
Magistrate, on taking cognizance of an ofence on complaint, shall
examine upon oath the complainant and the witnesses present and the
substance of such examination shall be reduced to writing and shall be
signed by the complainant and the witnesses. The requirement of Section
142 of NI Act that payee should be the complainant, is met if the
complaint is in the name of the payee. If the payee is a company,
necessarily the complaint should be fled in the name of the company.
Section 142 of NI Act does not specify who should represent the company,
if a company is the complainant. A company can be represented by an
employee or even by a non-employee authorized and empowered to
represent the company either by a resolution or by a power of attorney.
11. Section 138, NI Act mandates that payee alone, whether a
corporeal person or incorporeal person, shall be the complainant. Section
200 of the Code contemplates only a corporeal person being a
complainant. It mandatorily requires the examination of the complainant
and the sworn statement being signed by the complainant. If Section 142
of NI Act and Section 200 of the Code are read literally, the result will be :
(a) the complainant should be the payee of the cheque; and (b) the
complainant should be examined before issuing process and the
complainant’s signature should be obtained on the deposition. Therefore,
if the payee is a company, an incorporeal body, the said incorporeal body
can alone be the complainant. The mandatory requirement of Section 200
of the Code is that a Magistrate taking cognizance of an ofence on
complaint, shall examine upon oath the complainant, and that the
substance of such examination reduced to writing shall be signed by the
complainant. An incorporeal body can obviously neither give evidence nor
sign the deposition. If literal interpretation is applied, it would lead to an
impossibility as an incorporeal body is incapable of being examined. In the
circumstances, a harmonious and purposive interpretation of Section 142
of NI Act and Section 200 of the Code becomes necessary. Section 142
only requires that the complaint should be in the name of the payee.
Where the complainant is a company, who will represent the company
and how the company will be represented in such proceedings, is not
governed by the Code but by the relevant law relating to companies.
Section 200 of the Code mandatorily requires an examination of the
complainant ; and where the complainant is an incorporeal body,
evidently only an employee or representative can be examined on its
behalf. As a result, the company becomes a de jure complainant and its
employee or other representative, representing it in the criminal
proceedings, becomes the de facto complainant. Thus in every complaint,
where the complainant is an incorporeal body, there is a complainant – de
jure, and a complainant – de facto. Clause (a) of the proviso to Section 200
provides that where the complainant is a public servant, it will not be
necessary to examine the complainant and his witnesses. Where the
complainant is an incorporeal body represented by one of its employees,
the employee who is a public servant is the de facto complainant and in
signing and presenting the complaint, he acts in the discharge of his
ofcial duties. Therefore, it follows that in such cases, the exemption
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under Clause (a) of the frst proviso to Section 200 of the Code will be
available.
13. Resultantly, when in a complaint in regard to dishonour of a
cheque issued in favour of a company or corporation, for the purpose of
Section 142, NI Act, the company will be the complainant, and for
purposes of Section 200 of the Code, its employee who represents the
company or corporation, will be the de facto complainant. In such a
complaint, the de jure complainant, namely, the company or corporation
will remain the same but the de facto complainant (employee)
representing such de jure complainant can change, from time to time. And
if the de facto complainant is a public servant, the beneft of exemption
under Clause (a) of proviso to Section 200 of the Code will be available,
even though the complaint is made in the name of a company or
corporation.
14. Thus, the answer to the question raised is :
Where an incorporeal body is the payee and the employee who
represents such incorporeal body in the complaint is a public
servant, he being the de facto complainant, Clause (a) of the
proviso to Section 200 of the Code will be attracted and
consequently, the Magistrate need not examine the complainant
and the witnesses.
The appeal is accordingly allowed, the order of the High Court is
set aside and summoning order of the Magistrate stands restored.”
7. In Jugraj Singh and Another Vs. Jaswant Singh and Others
[Supra], the question involved was whether, the authorized person [Mr.
Chawla] possessed the Power of Attorney for executing the document
and for presentation of it for registration and whether the second
Power of Attorney was efective to render valid the transaction of sale
and the registration of the document both earlier than the Power of
Attorney. It is observed that, ‘Now the law is quite clear that ratifcation
relates back to the original act provided there is a disclosed principal and
this has been stated nowhere better than by Lord Macnaghten in Keighley
Maxsted and Co. v. Durant, 1901 AC 241 at pp 246, 247, quoting Tindal,
C. J. in Wilson v. Tumman, (1843) 6 M & G236 at p. 242’.
“That an act done, for another, by a person though without any precedent
authority whatever, becomes the act of the principal, subsequently
ratifed by him’ is the known and well-established rule of law. In that case
the principal is bound by the act, whether it be for the detriment or his
advantage, and whether it be founded on a tort or on a contract, to the
same efect as be, and with all the consequences which follow from, the
same act done by his previous authority. And so by a wholesome and7
2-CriminalAppeal-463-2007.odtconvenient fction, a person ratifying the act of another, who, without
authority, has made a contract openly and avowedly on his behalf, is
deemed to be, in fact he was not, a party to the contract”.
Relation back of an act of ratifcation was expressly accepted in this case.
Other cases have been summarised in the manual of the Law and Practice of
Powers of Attorney issued by the Council of the Chartered Institute of
Secretaries; This follows from the maxim of law “Omnis ratihabitio
retrotrahitur et mandato priori aequiparatur” that is to say, ratifcation is
thrown back to the date of the act done, and the agent is put in the same
Position as if he had authority to do the act at the time the act was done by
him. The learned authors quote the case of the House of Lords which we have
above cited ” end add to it certain other cases with which we do not consider
necessary to encumber this judgment.”
8. One of the proposition in Judgment in Rohitbhai Jivanlal
Patel Vs. State of Gujarat and Anr. [Supra] was that, the Accused has to
bring on record such facts and circumstances which may lead the Court
to conclude either that the consideration did not exist or that its non-
existence was so probable that a prudent man would, under the
circumstances of the case, act upon the plea that the consideration did
not exist.
9. In Doshi Brothers, Mumbai Vs. State of Maharashtra and
Others [Supra], the Proprietor of proprietary concern, fled a private
complaint under the N. I. Act against the Company and its Director. The
complaint was dismissed and Company and its Director came to be
acquitted. The said Judgment is on the facts and circumstances of that
case.
10. In M/s TRL Krosaki Refractories Ltd. Vs. M/s SMS Asia
Private Limited and Anr. [Supra], the solitary issue for consideration
was whether the complaint fled by the appellant under Section 138 of
the N. I. Act was in accordance with the requirement under Section 142
of the N. I. Act. By considering the previous Judgment, including the
Judgment in A. C. Narayanan Vs. the State of Maharashtra and Anr.
[2014] 11 SCC 790, it is observed that, in that view, the position that
would emerge is that when a company is the payee of the cheque based
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on which a complaint is fled under Section 138 of N. I. Act, the
complainant necessarily should be the Company which would be
represented by an employee who is authorized. Prima-facie, in such a
situation the indication in the complaint and the sworn statement (either
orally or by afdavit) to the efect that the complainant (Company) is
represented by an authorized person who has knowledge, would be
sufcient. The employment of the terms “specifc assertion as to the
knowledge of the Power of Attorney holder” and such assertion about
knowledge should be “said explicitly” as stated in A. C. Narayanan (supra)
cannot be understood to mean that the assertion should be in any
particular manner, much less only in the manner understood by the
accused in the case. All that is necessary is to demonstrate before the
learned Magistrate that the complaint fled is in the name of the “payee”
and if the person who is prosecuting the complaint is diferent from the
payee, the authorisation therefor and that the contents of the complaint
are within his knowledge. When, the complainant / payee is a company,
an authorized employee can represent the company. Such averment and
prima facie material is sufcient for the learned Magistrate to take
cognizance and issue process. If at all, there is any serious dispute with
regard to the person prosecuting the complaint not being authorized or if
it is to be demonstrated that the person who fled the complaint has no
knowledge of the transaction and, as such that person could not have
instituted and prosecuted the complaint, it would be open for the accused
to dispute the position and establish the same during the course of the
trial. As noted in Samrat Shipping Co. Pvt. Ltd. (supra), dismissal of a
complaint at the threshold by the Magistrate on the question of
authorisation, would not be justifed. Similarly, we are of the view that,
in such circumstances entertaining a petition under Section 482 to quash
the order taking cognizance by the Magistrate would be unjustifed when
the issue of proper authorization and knowledge can only be an issue for
trial.
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11. In M/s Satish and Company Vs. M/s S. R. Traders and others
[Supra], the question for consideration was whether the complaint
which was fled by and on behalf of the company was competent as on
the date of fling the same and what was the efect of the alleged
authorisation in favour of Witness No.1 fled after one [1] year and
another question for consideration was, where proper authorisation
letter or Power of Attorney was not fled, along with the complaint,
whether the company can ratify such actions later or whether such
authorisation letter can be fled later so as to regularise the irregular
proceedings. The relevant observations reads as under :-
“25. The object of law in all such cases, that the complaint or suit shall
be fled by a person duly authorised, is that, such proceedings will
defnitely have fnancial consequences on the company so as to bind
the company for the actions of such persons. A company which
sufered, a decree or order, at the hands of such a person, who was not
duly authorised, may repudiate the order and decree of a competent
Court as not binding. Even in criminal cases an aggrieved person may
also fle a suit for malicious prosecution in case a false complaint was
fled. Even in such cases also the company may take up a plea that it
was not bound by the actions of a particular ofcer on the ground that
he was not duly authorised in that behalf. Therefore, a principle has
emerged that any legal proceedings whether criminal or civil shall be
instituted by the company through its authorised ofcers, so as to bind
the company. In this view of the matter, therefore, there shall be a
proper initiation of the proceedings by fling a proper complaint so that
the Court may take cognizance of the same and if the complaint, as
fled, was not maintainable as on the date of its fling, it was liable to
be dismissed and subsequent ratifcation cannot revive it. For this
principle, I am supported by a judgment of the High Court of Madras in
“K. N. Sankaranarayanan v. Shree Consultations” (1994) 80 Com Cas
558. In that case, one of the Directors fled a petition for prevention of
oppression and mismanagement on behalf of the company without the
approval of the Board of Directors and on that basis it was contended
that such a suit instituted without the authority of the Board was
incompetent. Negativing the contention of the other side in that case,
that subsequently, a letter of consent to fle the petition under Ss. 397
and 398 of the Companies Act was given, the Court held that any cause
instituted without the authority makes it invalid from its inception and
cannot be validated by a later ratifcation and accordingly the
proceedings initiated by one of the Directors without the resolution of
the company was dismissed as not maintainable. In this context, I
further make it clear that in terms of S. 142 of the Negotiable
Instruments Act, another duly authorised complaint could be fled in
time i.e. within one month from the date of cause of action. In this view
of the matter, Ex. P-1, a letter of authorisation fled after one year10
2-CriminalAppeal-463-2007.odtcannot be taken as a proper ratifcation of the action initiated by P.W.
1. Because if it is taken that on the date of Ex. P-1, letter (fled after
one year), a duly constituted complaint is fled, it would be barred by
limitation of one month prescribed by S. 142 of the Negotiable
Instruments Act. Moreover nothing prevented the complainant to
withdraw the complaint himself voluntarily and fle another complaint
with proper authorisation within the time permitted by S. 142 of the
Act.
12. In A. C. Narayanan and Another Vs. State of Maharashtra
and Others [Supra], the Appeal was against the order and issuance of
process for the ofence punishable under Sections 138 and 142 of the
N. I. Act. The relevant Paragraph No.26 reads as under :-
“26) While holding that there is no serious confict between the
decisions in MMTC (supra) and Janki Vashdeo Bhojwani (supra), we
clarify the position and answer the questions in the following manner:
(i) Filing of complaint petition under Section 138 of N.I Act
through power of attorney is perfectly legal and competent.
(ii) The Power of Attorney holder can depose and verify on oath
before the Court in order to prove the contents of the complaint.
However, the power of attorney holder must have witnessed the
transaction as an agent of the payee/holder in due course or
possess due knowledge regarding the said transactions.
(iii) It is required by the complainant to make specifc assertion as
to the knowledge of the power of attorney holder in the said
transaction explicitly in the complaint and the power of attorney
holder who has no knowledge regarding the transactions cannot
be examined as a witness in the case.
(iv) In the light of Section 145 of N.I Act, it is open to the
Magistrate to rely upon the verifcation in the form of afdavit
fled by the complainant in support of the complaint under
Section 138 of the N.I Act and the Magistrate is neither
mandatorily obliged to call upon the complainant to remain
present before the Court, nor to examine the complainant of his
witness upon oath for taking the decision whether or not to issue
process on the complaint under Section 138 of the N.I. Act.
(v) The functions under the general power of attorney cannot be
delegated to another person without specifc clause permitting
the same in the power of attorney. Nevertheless, the general
power of attorney itself can be cancelled and be given to another
person.”
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13. In Milind Shripad Chandurkar Vs. Kalim M. Khan and Anr.
[Supra], it is observed that, a person can maintain a complaint provided
he is either a “payee” or “holder in due course” of the Cheque.
14. In Gamini Bala Koteshwara Rao and Others Vs. State of
Andhra Pradesh through Secretary [Supra], the principles in respect of
the Appeal against acquittal are reiterated and it is observed that, it is
open to the High Court to reappraise the evidence and conclusions
drawn by the Trial Court but only in a case when the Judgment of the
Trial Court is stated to be perverse.
15. As the matter at hand is in respect of the Complaint under
the N. I. Act, the relevant provisions of the N. I. Act are considered
below. Section 138 of the N. I. Act is in respect of dishonour of Cheque
for insufciency, etc. of funds in the account. Section 139 of the N. I.
Act provides for the presumption in favour of holder. Section 118 of
the N. I. Act is in respect of presumption as to negotiable instruments.
It provides that, until the contrary is proved, the following presumption
shall be made :
” [a] …. ….. …. …. …. ….. …. …. …..
[b] …. ….. …. …. …. ….. …. …. …..
[c] …. ….. …. …. …. ….. …. …. …..
[d] …. ….. …. …. …. ….. …. …. …..
[e] …. ….. …. …. …. ….. …. …. …..
[f] …. ….. …. …. …. ….. …. …. …..
[g] that holder is a holder in due course . – that the holder of a
negotiable instrument is a holder in due course :
Provided that, where the instrument has been obtained from
its lawful owner, or from any person in lawful custody thereof, by
means of an ofence or fraud, or has been obtained from the maker or
acceptor thereof by means of an ofence or fraud, or for unlawful
consideration, the burden of proving that the holder is a holder in due
course lies upon him.”
15.1 Section 142 of the N. I. Act is in respect of congnizance of
ofence, which reads as under :
“142. Cognizance of ofences. – [1] Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 [2 ot 1974],12
2-CriminalAppeal-463-2007.odt[a] no Court shall take cognizance of any ofence punishable
under section 138 except upon a complaint, in writing, made
by the payee, or as the case may be, the holder in due course
of the cheque ;
[b] such complaint is made within one month of the date on which
the cause of action arises under clause (c) of the proviso to
section 138 ;
[Provided that the cognizance of a complaint may be
taken by the Court after the prescribed period, if the
complainant satisfes the Court that he had sufcient cause
for not making a complaint within such period; ]
[c] no Court inferior to that of a Metropolitan Magistrate or a
Judicial Magistrate of the frst class shall try any ofence
punishable under section 138.
[2] …. ….. …. …. …. ….. …. …. ….. ”
16. The Complaint is feld by the Appellant for the ofence
punishable under Section 138 of the N. I. Act. Admittedly, he is not the
payee or the holder of the Cheque in due course in personal capacity.
According to the Complainant and the aspect, which is not in dispute
that, Respondent No.1 was the dealer of the Corporation. The
Appellant was working as the Deputy Manager [Retail] in the
Corporation. According to the Complainant against the supply of lubes
and grease by the Corporation to Respondent No.1, the above referred
Cheque was issued by Respondent No.1, which came to be
dishonoured. As per the Complaint, the Complainant issued the notice
to Respondent No.1 and Respondent No.1 did not pay the amount nor
replied the notice.
17. Admittedly, the Complaint and Afdavit of the Complainant
are silent in respect of authorization by the Corporation, which was the
payee, to the Complainant to fle the Complaint on its behalf. In the
Evidence Afdavit, there is reference of the General Power of Attorney
in favour of the Complainant. The said General Power of Attorney is at
Exhibit – 57. It bears the endorsement of the learned Advocate for
Respondent No.1 giving no objection to exhibit the same. The
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2-CriminalAppeal-463-2007.odt
Complainant was cross-examined on behalf of Respondent No.1 in
respect of the said Power of Attorney and following vital aspects have
come in the evidence of Complainant that [i] the General Power of
Attorney was of the year – 2000 and executed by the Executive
Director – Proshanto Banerjee ; [ii] the Complaint was fled on the basis
of the said Power of Attorney, which was of the year – 2000 ; [iii] he had
no evidence to show whether the said Proshanto Banerji was having
any authority to execute or delegate any power of Attorney in his
favour ; [iv] the said Power of Attorney of the year – 2000 was the
General Power of Attorney, by which, he was given or delegated the
power only in respect of sale, purchase or lease of immovable
property ; [v] he had not issued any notice to Respondent No.1 on the
basis of the said Power of Attorney of 2000. Suggestion is given to the
Complainant that, no Complaint could be fled on the basis of the said
Power of Attorney of the year – 2000. This evidence on record shows
that, the document, which formed the basis for the Complainant to fle
the Complaint, was the General Power of Attorney in respect of limited
purposes i.e. sale, purchase and lease of immovable property. Further,
there is no evidence whether the said Power of Attorney holder had
any authority to delegate the powers to the other Ofcer of the
Company, which were delegated to him by the Corporation.
Admittedly, there is no resolution from the Board of Directors of the
Company in respect of authorization to fle the Complaint.
18. At Exhibit – 46, the Complainant has brought on record
another General Power of Attorney dated 10/05/2005 to show that, he
was delegated with the powers and authorities in respect of several
aspects, mentioned in the said document. The said Power of Attorney
was not admitted by the learned Advocate for Respondent No.1. The Trial
Court, in the impugned Judgment and Order, observed that, the contents
of General Power of Attorney at Exhibit – 46 were not duly proved by the
Complainant. On the basis of this Exhibit – 46, it is the contention on
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behalf of the Complainant that, there was ratifcation of the act of the
Complainant of fling the Complaint. Reliance is placed on Section 196 of
the said Act, which provides for ratifcation. The Section 196 of the said
provides that Where acts are done by one person on behalf of another,
but without his knowledge or authority, he may elect to ratify or to
disown such acts. If he ratifes them, the same efects will follow as if
they had been performed by his authority. The said Section is under
Chapter – X of the said Act, which deals with Agency. Section 198 of
the said Act provides that, no valid ratifcation can be made by a person
whose knowledge of the facts of the case is materially defective.
19. The core principle of ratifcation is one by which a person
approves of the act of another knowing about the act. Coming to the
case at hand, there is absolutely no evidence that the General Power of
Attorney holder was aware of the factual aspects of the matter.
Admittedly, there is no resolution from the Board of Directors of the
Corporation ratifying the Complainant’s act of fling the Complaint. In
absence of any evidence to establish the ratifcation of the
Complainant’s act, the contention in respect of ratifcation melts down.
Even if the Exhibit – 46 is accepted, it does not come to the rescue of
Appellant.
20. The Complainant examined the Depot Manager of the
Corporation as Witness No.2. His evidence shows that, in 2002, he was
working as the Account Ofcer and knew the transaction of the
Complainant with Respondent No.1. The Corporation supplied the
diesel and lube oils on credit in the year – 2002. The documents in the
nature of Cash Receipt [Exhibit – 47], is brought on record in the
evidence of this Witness. His cross-examination shows that, at the time
of preparation of Exhibit – 47, he was doing ofce work and the
meaning of word cash was payment in currency. He volunteered that,
the Corporation do not accept the payment in cash and accept D.D.,
Cheques, Draft and Pay Order. It has come in his cross-examination
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that, he never went to the Petrol Pump of Respondent No.1 and he
personally never inquired with Bhadli Depot as to whether the oil was
actually received by Respondent No.1. Suggestion is given that,
Respondent No.1 never received the oil from the Bhadli Depot and
Exhibit – 47 was a false document. It is the defence that, three [3]
blank Cheques were given towards security and material i.e. lubricant
and grease, were not delivered to Respondent No.1.
21. The Judgment in M/s TRL Krosaki Refractories Ltd. Vs. M/s
SMS Asia Private Limited and Anr. [Supra], pressed into service by the
learned Advocate for the Appellant, substantially difers on the factual
aspects. In the case at hand, the Complainant is not the Corporation.
The Complainant, who was working with the Corporation, failed to
establish that, he was authorized to fle the Complaint against
Respondent No.1. On the basis of evidence on record and the defence,
Respondent No.1 had rebutted the presumption. The learned Trial
Court has rightly considered the aspects of rebutting the presumption
and observed that, except the bare words of Witness No.2, no
documentary evidence was produced by the Complainant to show that,
the material i.e. full loads of Diesel and some Lube Oils were delivered
by the Complainant in 2002. The Exhibit – 47 is appreciated by the
learned Trial Court and observed that, there is only disputed Cheque
Number on Exhibit – 47 and nothing else regarding on which date, what
quantity of goods were delivered by the Complainant to Respondent
No.1. This shows that, the very essential ingredients of legally
enforceable liability is not established by the Complainant.
22. The Complaint do not qualify the legal requirement
essential as per the above referred provisions of the N. I. Act. As
regards the contention that, Respondent No.1 sought time in the
Appeal to pay the money, the same will not amount to curing the
defects in the Complaint. Seeking time by Respondent No.1 in the
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2-CriminalAppeal-463-2007.odt
Appeal, will not help the Appellant and can be no ground for the
Appellant in the Appeal to interfere in the impugned Judgment and
Order. The said Act of Respondent No.1 to seek time to pay the
amount to the Appellant can, at the most, be said to be his endeavour
to settle the matter. The learned Trial Court has considered all the
aspects of the matter. As fundamentally the Complaint is defective,
the impugned Judgment and Order do not call for any interference.
The fndings recorded by the learned Trial Court are based on the
material / evidence available on record. The conclusion drawn and
reached by the learned Trial Court is the only conclusion, which is
possible and legally sustainable and, therefore, the Appeal is liable to
be dismissed. Hence, the following order :
ORDER
[I] The Appeal is dismissed.
[II] The Record and Proceedings be sent back to the learned Trial
Court.
[NEERAJ P. DHOTE, J.]
Sameer/-
Signed by: Md. Sameer Q.
Designation: PA To Honourable Judge
Date: 24/06/2025 20:35:06 17