1 apeal750.08
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 750 OF 2008
The Akola Urban Co-operative Bank Ltd.,
Tajnapeth Branch, Akola,
through its Authorised Officer,
Near Open Theatre Gandhi Road,
Akola. .... APPELLANT
VERSUS
Sharad s/o Shankar Balhad,
Aged - Major, Occupation - Service,
R/o Kothari Vatika No.5, Mankapur,
Akola. (Police Station, Civil Lines, Akola). .... RESPONDENT
______________________________________________________________
Shri A.S. Agrawal, Advocate for the appellant,
Shri R.J. Mirza, Advocate for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 15
DECEMBER, 2017
th
ORAL JUDGMENT :
Shri R.J. Mirza, learned Advocate for the respondent has filed on record praecipe stating that he has issued notice dated 12-12-2017 to the respondent calling upon the respondent to engage another Advocate forthwith. The learned Advocate for the respondent ::: Uploaded on - 16/12/2017 ::: Downloaded on - 17/12/2017 02:07:03 ::: 2 apeal750.08 states in the praecipe that he may be discharged.
2. In view of the praecipe, Shri R.J. Mirza, learned Advocate is discharged.
3. Heard Shri A.S. Agrawal, learned Advocate for the appellant-original complainant.
4. Challenge is to the judgment and order dated 12-8-2008 passed by the learned Judicial Magistrate First Class, Court 9, Akola in Summary Criminal Case 1359/07, by and under which the respondent- accused is acquitted of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "Act").
5. The learned Advocate Shri A.S. Agrawal submits that the judgment and order dangerously borders on perversity. He would submit that the learned Magistrate recorded every finding in favour of the complainant. The disputed cheque, which concededly was dishonoured for want of sufficient fund in the account of the company, is held to have been issued to discharge the legally enforceable debt to-wit the arrears of loan which the complainant co-operative bank ::: Uploaded on - 16/12/2017 ::: Downloaded on - 17/12/2017 02:07:03 ::: 3 apeal750.08 advanced to the accused. However, the acquittal is only on the ground that the person who has instituted the complaint for and on behalf of the complainant is not duly authorised either by a resolution of the Board of Directors or by any other authority.
6. Having given my anxious consideration to the evidence on record, the submissions of the learned Advocate Shri A.S. Agrawal and the reasons underlying the acquittal, I do not find any perversity either in the approach of or in the findings recorded by the learned Magistrate. Concededly, by virtue of Section 27 of the Maharashtra Co-operative Societies Act, 1960, the complainant co-operative bank is a corporate body. It is true that as a corporate body-the complainant bank must necessarily act through a living person. But then, as is rightly held by the learned Magistrate, the person Shri Abhay Moreshwar Vaidya, who instituted the complaint for and on behalf of the said co-operative bank, who has verified the complaint and prosecuted the complaint, was duly authorised by the said co-operative bank either by a resolution of the Board of Directors or by and under a power of attorney duly conferred. Shri A.S. Agrawal, learned Advocate fairly states that neither the resolution of Board of Directors nor such a power of attorney are produced before the learned Magistrate muchless ::: Uploaded on - 16/12/2017 ::: Downloaded on - 17/12/2017 02:07:03 ::: 4 apeal750.08 proved. However, the learned Advocate Shri A.S. Agrawal states that as a fact the complainant co-operative bank did resolve to authorise Shri Abhay Moreshwar Vaidya to institute and prosecute the complaint. He would submit that an opportunity be given to move an appropriate application under Section 391 of the Criminal Procedure Code seeking permission to adduce additional evidence to prove the resolution of the Board of Directors.
7. I am not inclined to accept the submission on behalf of the complainant that an opportunity be given to move an application under Section 391 of the Criminal Procedure Code to adduce additional evidence, at this stage.
8. I am afraid, the complainant has missed the bus.
9. I do not see any compelling case for interfering in the judgment of acquittal. It is trite law, that if the view taken is a possible view, the judgment of acquittal ought not to be interfered with by this Court unless the judgment is vitiated by demonstrable perversity. None is brought to the notice of this Court.
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10. The appeal is sans merit and is rejected.
JUDGE adgokar ::: Uploaded on - 16/12/2017 ::: Downloaded on - 17/12/2017 02:07:03 :::