Bombay High Court
The Akola Urban Co-Op Bank Ltd., ... vs Sharad Shankar Balhad on 15 December, 2017
Bench: R. B. Deo
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
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
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
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.
5 apeal750.08
10. The appeal is sans merit and is rejected.
JUDGE
adgokar
