Bombay High Court
M/S. Shriram Chits Ltd. Amravati ... vs Mr. Abdul Rahim Abdul Ajij Musani ... on 2 November, 2017
Bench: R. B. Deo
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.
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.
4] 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
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
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
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
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
