NEUTRAL CITATION
R/CR.MA/15022/2023 ORDER DATED: 15/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15022 of 2023
In
R/CRIMINAL APPEAL NO. 2157 of 2023
With
R/CRIMINAL APPEAL NO. 2157 of 2023
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SHRIRAM TRANSPORT FINANCE CO. LIMITED THRO IMRAN
BASIRBHAI PATHAN
Versus
STATE OF GUJARAT
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Appearance:
MR MANISH J PATEL(2131) for the Applicant(s) No. 1
MS NAMRATA R MULCHANDANI(9956) for the Applicant(s) No. 1
for the Respondent(s) No. 2
Ms. Monali Bhatt, Addl. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 15/09/2023
ORAL ORDER
1. Heard Mr. Manish Patel, learned advocate for the applicant- original complainant.
2. This application is filed seeking leave to appeal under Section 378(4) of the Code of Criminal Procedure against the impugned judgment and order dated 03.07.2023 passed by the learned 4th Additional Civil Judge and Judicial Magistrate First Class, Dahod in Criminal Case No.1481 of 2020. By the said judgment and order, the learned Magistrate has recorded the acquittal of the present respondent no.2- original accused for the alleged offence punishable under Section 138 of the Negotiable instruments Act.
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3. Learned advocate for the applicant has invited attention of this Court to the reasons assigned by the learned Magistrate while recording the impugned order of acquittal. Learned advocate has fairly pointed out that the learned Magistrate has proceeded to pass the impugned order of acquittal mainly on the ground that no endorsement was made by the complainant on the disputed cheque with regard to part payment being received from the respondent - accused. Learned Magistrate taking into consideration the admission made by the complainant in his cross examination, who had appeared before the trial Court in his capacity as power of attorney holder of the complainant, has accepted that date of loan and the amount of loan has not been mentioned in the complaint.
3.1.Another aspect which has been taken into consideration by the learned Magistrate is that the power of attorney holder who had appeared before the learned Magistrate is not competent to depose before the Court. Noticing the fact that power of attorney was issued by the Company Secretary, the original complainant was called upon to bring on record any authorization being given by the Director or Head of the Company delegating such powers to the Company Secretary to sign on behalf of the company. In absence of any document being brought on record by the original complainant and noticing the judgment of the Hon'ble Supreme Court in the case of A C Narayanan vs. State of Maharashtra reported in (2014) 11 SCC 790, more particularly, para 26, the learned Magistrate has not entertained the complaint at the instance of the power of attorney holder.
4. This Court by order dated 29.08.2023 had requested the Page 2 of 6 Downloaded on : Wed Sep 20 20:35:26 IST 2023 NEUTRAL CITATION R/CR.MA/15022/2023 ORDER DATED: 15/09/2023 undefined Registry to call for the Record and Proceedings and the same has been received. This Court had examined the record and proceedings of trial Court and on appreciation of examination of the averments in the original complaint, the fact of absence of details with regard to loan amount has been confirmed. In such circumstances, the learned Magistrate has arrived at a conclusion that the complainant company has failed to prove that the amount stated in the above said cheque is actual "legally recoverable debt".Upon examination of the Exh.27 which is the summary of statement of the loan account of respondent accused, it appears that the loan amount of Rs.1,30,000/- is alleged to have been released in favour of the respondent - accused on 31.1.2015 where the term period is fixed for 40 months. The original complainant company has charged interest on such loan amount to the extent of Rs.78,483/-. The last date of installment indicated is dated 5.6.2018. The additional amount of loan of Rs.15308/-is claimed to have been sanctioned on 21.10.2015 for a period of 12 months and interest of an amount of Rs.1864/- has been charged. The last date of such additional loan amount reflected is dated 5.11.2016. If one goes by the aforesaid statement of account, the last entry under the head of receipt towards the outstanding amount relates to the entry of dated 26.10.2015. In the original complaint, the averment is made with regard to details of cheque, which reads as under:
Bank Name (UCO Bank) Branch Name Dahod Cheque No. 051281,051282 Cheque Date 16.7.2019 Page 3 of 6 Downloaded on : Wed Sep 20 20:35:26 IST 2023 NEUTRAL CITATION R/CR.MA/15022/2023 ORDER DATED: 15/09/2023 undefined Amount 1,30,000 + 69333 = 1,99,333/- Total
4.1. Upon bare perusal of the averments made in the original complaint, it appears the claim put forward by the original complainant is for principal amount of Rs.1,30,000/- along with the additional amount of Rs.69,333/-, which seems to have been calculated towards the interest. Thus, it is contended that the total outstanding amount is calculated as Rs.1,99,333/-. However , upon examination of complainant, no specific averment is made by the original complainant with regard to handing over of the cheque by the respondent-accused.
4.2. The fact remains that the complainant company has failed to bring on record any details with regard to issuance of actual loan amount and the calculation with regard to amount reflected in the disputed cheques. Having noted the aforesaid relevant dates, one cannot also ignore the fact that last receipt of the amount towards loan transaction as reflected from the statement of account was 19.10.2015, whereas, the disputed cheques is according to the original complainant is issued on 16.7.2019, which in the opinion of the Court, is beyond the prescribed period of three years as provided under the period of Limitation Act.
4.3. Even otherwise, the complaint is filed by the person who claims to be the power of attorney holder to have authority to present complaint on behalf of the complainant company. As noticed by the learned Magistrate, the power of attorney dated 1.10.2018 is given by one Mr.Imranbasir Yakubbasir Pathan, who according to the complainant is the Company Secretary of Page 4 of 6 Downloaded on : Wed Sep 20 20:35:26 IST 2023 NEUTRAL CITATION R/CR.MA/15022/2023 ORDER DATED: 15/09/2023 undefined the complainant company.
4.4. Indisputably, the power of attorney is not issued by the Director or Head of the Company. No cogent material has been placed on record in the form of any resolution being passed by the company authorizing the said Company Secretary to delegate the powers to lodge the complaint or to sign the power of attorney on behalf of the company. The true copy of the power of attorney has been placed on record in the present appeal wherein from the examination of the contents of the said power of attorney, the reference being made to the resolutions passed by the Board of Directors conveyed on 9.11.2015 and 29.10.2015 appears. However, the fact remains that the aforesaid resolutions have not been placed on record before the learned Magistrate nor before this Court. Considering the cross examination of the applicant- power attorney holder who has appeared to depose on behalf of complainant company, it transpires that he is neither witness to the transaction nor has any personal knowledge with regard to transaction.
4.5. The learned Magistrate has rightly taken into consideration the principle laid down by the Hon'ble Supreme Court in the case of A C Narayanan (supra) wherein the Court has categorically held that though the power of attorney holder can certainly deposed on behalf of the company, however, the power of attorney must witness the transaction as an agent of the payee or holder in due course or must possess due knowledge regarding the said transaction. It is also expected from the complainant to make specific assertions about the knowledge of the power of attorney holder in respect of such transaction, Page 5 of 6 Downloaded on : Wed Sep 20 20:35:26 IST 2023 NEUTRAL CITATION R/CR.MA/15022/2023 ORDER DATED: 15/09/2023 undefined explicitly in the complaint. The Hon'ble Supreme Court has further held that in absence of such averrments being made, the power of attorney holder who has no knowledge with regard to such transaction, cannot be examined as witness in the said case. In light of the aforesaid observations of the Hon'ble Supreme Court and having noticed the averments made in the original complaint, this Court is convinced that the learned Magistrate has rightly proceeded to pass the order of acquittal.
5. Hence, no arguable case is made out and present application seeking leave to appeal is hereby refused. Thus, present application stands rejected.
Order in Criminal Appeal No.2157 of 2023 In view of rejection of the leave to appeal, present Criminal Appeal stands rejected. Registry is directed to transmit back the Record and Proceedings to the concerned Court forthwith.
(NISHA M. THAKORE,J) KAUSHIK J. RATHOD Page 6 of 6 Downloaded on : Wed Sep 20 20:35:26 IST 2023