apeal286.16.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.286 OF 2016
M/s Shriram Chits (Maharashtra) Limited,
Branch Amravati, through its General Power
of Attorney Holder and authorized signatory
Mr. Ashfaq Ullah Khan s/o Shafiq Ahmed Khan,
Aged about 26 years, Occupation: Service,
as a Branch Manager, Resident of 2nd floor,
Chandak Plaza, Main Square, Near Girls High
School, Court Road, Camp, Amravati-444602
presently Power of Attorney Holder
Shri Parasram Balkisan Nagarwar,
Nagpur. ....... APPELLANT
...V E R S U S...
1] Mr. Abdul Rahim Abdul Ajij Musani,
Aged about 41 years,
Occupation: Business, Residents of
Quarter No.3, Paradise Colony,
Near Kohinur Colony, Opposite Sofiya
High School, Walgaon Road, Amravati,
Tq. & District Amravati.
2] State of Maharashtra through
PSO PS Gadge Nagar, Amravati. ....... RESPONDENTS
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None for Appellant.
None for Respondent No.1
Ms. R.V. Kaliya, APP for Respondent No.2/State.
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CORAM: ROHIT B. DEO, J.
DATE: 2 nd NOVEMBER, 2017. ::: Uploaded on - 02/11/2017 ::: Downloaded on - 04/11/2017 01:47:53 ::: apeal286.16.J.odt 2 ORAL JUDGMENT 1] The appellant is aggrieved by judgment and order
dated 27.03.2014 passed by the learned Judicial Magistrate First Class, Court 1, Amravati in Summary Criminal Case 372/2011 acquitting the respondent 1-accused of the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (Act for short).
2] The appeal was called out on 12.10.2017. There was no appearance on behalf of the appellant or respondent 1.
The hearing was adjourned to 02.11.2017 subject to payment of costs, which order is not complied with.
3] None appears for either the appellant-complainant or the respondent 1-accused even today. In this situation, I have deemed it appropriate to decide the appeal on merits after scrutinizing the record with the assistance of the learned Additional Public Prosecutor Ms. R.V. Kaliya who is appearing on behalf of the respondent 2-State.
::: Uploaded on - 02/11/2017 ::: Downloaded on - 04/11/2017 01:47:53 ::: apeal286.16.J.odt 34] The appellant is a company incorporated under Indian Companies Act and is engaged in Chit Fund business.
5] The appellant instituted proceedings under section 138 of the Act against the respondent 1-accused inter alia contending that the accused issued cheque 505062 for Rs.32,338/- dated 09.11.2010 drawn on H.D.F.C. Bank, which was dishonoured on presentation. The appellant (hereinafter referred to as the complainant) issued statutory notice dated 23.12.2010 which was duly received by the respondent 1 (hereinafter referred to as accused) on 24.12.2010, however, the said notice was not complied with.
6] The complaint is signed and presented by one Ashfaqullah Khan as General Power of Attorney Holder and authorized signatory of the complainant. One of the defences raised by the accused was that Ashfaqullah Khan was not authorized to institute and prosecute the complaint. Resolution of the complainant company authorizing the said Ashfaqullah Khan to institute the proceeding was not produced on record, was the contention. It was also contended by the accused that the amount ::: Uploaded on - 02/11/2017 ::: Downloaded on - 04/11/2017 01:47:53 ::: apeal286.16.J.odt 4 of disputed cheque was credited in the account of the complainant and is reflected in the extract of account. Nothing was due and payable at the relevant time, was the submission.
7] According to the complainant, the accused agreed to subscribe Rs.10,000/- per month to one of the Chit Fund Scheme.
The accused failed to pay monthly installments for the period from 19.07.2010 to 16.10.201 amounting to Rs.40,000/- and after deducting dividend of Rs.7662/- from the E.M.I. amount for the said period, an amount of Rs.32,338/- was outstanding against the accused, was the contention of the complainant. The disputed cheque was issued to discharge the said liability, was the contention.
8] The learned Magistrate has framed points in paragraph 5 of the judgment impugned, and has recorded findings against the points framed. The learned Magistrate has acquitted the accused only on the ground that the complaint is not competently instituted. The learned Magistrate has noted in paragraph 14 of the judgment impugned that it is brought out in the cross-examination of the C.W.1 that no document is produced ::: Uploaded on - 02/11/2017 ::: Downloaded on - 04/11/2017 01:47:53 ::: apeal286.16.J.odt 5 on record to prove that Ashfaqullah Khan was the Power of Attorney Holder of the complainant company.
9] The learned Magistrate has dealt with the maintainability of the complaint thus:
15] Having heard submissions of both counsels, it is important to note that the complainant has produced board Resolution vide Exh.31, power of attorney vide Exh.32 and authorization vide Exh.33. On scan and scrutiny of the said power of attorney it reveals that the subsequent power of attorney Mr. Achal Kolhe was authorised on behalf of the complainant company vide resolution dated 02/06/2003 in the said resolution the Director Jilani was authorised to appoint power of attorney on behalf of the company, accordingly said Jilani had executed power of attorney in favour of present CW.1 Achal Devidas Kolhe and the said power of attorney came to be executed on 29th November 2012. Thus, admittedly authorisation of previous power of attorney Mr. Ashfakullah Khan is in question. The complainant is required to prove that the authority on behalf of the complainant company is given to the said then power of attorney to prosecute and present the case against the accused. On perusal of record it also reveals that at the time of filing of complaint along with list Exh.3, at Sr. No.1, that the complainant has filed the General power of attorney of Mr. Ashfakullah Khan dated 25/09/2009 and copy of Board resolution dated 02/06/2003 but it is significant to note that the said power of attorney is not at all proved by the complainant during course of the evidence and trial. Merely xerox copy of the general power of attorney is produced on record. No doubt the boar resolution is ::: Uploaded on - 02/11/2017 ::: Downloaded on - 04/11/2017 01:47:53 ::: apeal286.16.J.odt 6 produced on record. No doubt the board resolution is produced on record but the said board resolution nowhere reflects that the Ashfakullah Khan was authorised on behalf of complainant company to prosecute the present complaint. If the complainant would have prove the said xerox copy of General power of attorney of Mr. Ashfakullah Khan, it could have been concluded that the said previous general power of attorney was authorised to prosecute the present complaint. But in absence of the said evidence the objection raised by the accused in present case is legal and proper. No doubt the present CW.1 is authorised but the said authorisation appars to be dated 29 th November, 2012. So it is clear that the complainant failed to prove that the said general power of attorney Mr. Ashfakullah Khan was authorised on behalf of the complainant company to prosecute the present complaint.
19] The tenor of the cross examination of the counsel of accused clearly goes to show that he has challenged the authorisation of the then power of attorney therefore the burden shifted upon complainant to prove the valid authorisation of the then power of attorney holder to prosecute the present case. The complainant has though produced the xerox copy of the earlier general power of attorney but, he has not get it exhibited and prove the reasons best known to complainant. But ultimately the said proof goes to the root of case and make the complaint non maintainable. Thus, in backdrop of above discussion I conclude that the complaint is not maintainable in absence of proof of valid authorisation to the then general power of attorney holder of Ashpakullah Khan to prosecute the present complaint. Hence, I have answered point no.1 in negative.
10] I have given my anxious consideration to the evidence ::: Uploaded on - 02/11/2017 ::: Downloaded on - 04/11/2017 01:47:53 ::: apeal286.16.J.odt 7 on record in the light of the aforesaid observations of the learned Magistrate. The learned Magistrate is perfectly justified in recording a finding that the complaint is not competently instituted since the authority of Ashfaqullah Khan to represent the complainant company is not proved.
11] The view taken by the learned Magistrate is a possible view and is certainly not perverse. I am not inclined to interfere in the judgment of acquittal since I do not find any perversity in the reasoning adopted by the learned Magistrate.
12] The appeal is sans merit and is rejected.
13] The bail bond shall stand discharged.
14] Order accordingly.
JUDGE
NSN
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