M/S Kitpy Industries ... vs Ajit Purandare,Prop.Of M/S ...
2017 Latest Caselaw 7472 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 412 OF 2002


 M/s. Kitply Industries Ltd., 
 through Shri Anil P. Pathak, 
 Aged about 47 years, 
 Occupation - Branch Manager, 
 Holding Power of Attorney, 
 Having office at Poonam Chambers, 
 Civil Lines, Nagpur.                                          ....       APPELLANT


                     VERSUS


 Ajit S. Purandare, 
 Proprietor of M/s. Polymechnos, 
 Aged about 52 years, 
 Occupation - Business, 
 R/o 4, Sawarkar Nagar, Nagpur.                                ....       RESPONDENT


 ______________________________________________________________

             Shri Rahul Thakre, Advocate for the appellant.
                       None for the respondent.
  ______________________________________________________________

                               CORAM  :  ROHIT B. DEO, J.

                            DATED    :    22
                                              nd  SEPTEMBER, 2017

 ORAL JUDGMENT : 

The appeal challenges the judgment and order dated

30-4-2002 in Regular Criminal Case 302/1992, delivered by the

learned Judicial Magistrate First Class, Court 1, Nagpur, by and under

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which the respondent is acquitted of offence punishable under Section

138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as

the "Act").

2. The learned Magistrate has acquitted the accused

primarily on two grounds. The first ground is that the complaint is

signed and instituted by one Anil P. Pathak purportedly the Branch

Manager of the complainant/company. A finding of fact is recorded,

that it is not proved that Anil P. Pathak was authorized to represent the

complainant/company. The other ground of acquittal, is that

concededly, the statutory notice is not served on the accused. The

learned Magistrate has held that since it is proved that at the relevant

time the accused was in judicial custody, the postal endorsement of

"not claimed", etc. would not give rise to a presumption either under

Section 114(f) or Section 27 of the General Clauses Act.

3. The view taken by the learned Magistrate is an eminently

possible or plausible view and is certainly not perverse.

4. However, the learned Counsel Shri Rahul Thakre invites

my attention to Exhibit 56 which is an application for directing the

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respondent/accused to admit the document. The application Exhibit

56 states that a photocopy of the power of attorney is already filed on

record by the complainant. The prayer in the said application is that

the Court be pleased to direct the non-applicant/accused to admit the

document in the interest of justice. The prayer is strange. The Court is

certainly not empowered to direct a party to admit the document. Be

that as it may, the response of the accused appearing in person was to

make an endorsement "no objection". This endorsement by a party

appearing in person, cannot be construed as an admission of the power

of attorney. However, the photocopy of the power of attorney wrongly

came to be marked Exhibit 57. I have no hesitation in concurring with

the learned Magistrate, that the power of attorney on record is not

proved notwithstanding that the same was wrongly marked Exhibit 57.

Concededly, there is no other document on record to show that Shri

Anil P. Pathak was the Manager of the complainant or that Shri Anil P.

Pathak was duly authorised by the complainant to institute the

complaint. The complainant is a company with a corporate persona.

The learned Magistrate is more than justified in recording a finding

that in the absence of a resolution of the company or power of

attorney, the very maintainability of the complaint is rendered

vulnerable.

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5. In this view of the matter, I need not delve in any detail of

the second ground or rejection of the complaint which is that the

statutory notice was not served.

6. My attention is drawn by the learned Counsel for the

complainant to the judgment of the Hon'ble Supreme Court in the case

of C.C. Alavi Haji vs. Palapetty Muhammed and Another reported in

(2007)6 SCC 555. I do not express any opinion on the contention of

the learned Counsel for the complainant/appellant that in view of the

judgment of the Hon'ble Supreme Court, it must be held that the

presumption under Section 27 of the General Clauses Act is activated

and service of statutory notice must be presumed notwithstanding that

the accused was in police/judicial custody at the relevant time.

7. On an overall view of the matter, I am not inclined to

interfere with the judgment of acquittal since the view taken is not

perverse. The appeal is without merit and is dismissed. Bail bond of

the respondent shall stand discharged.

                                                                    JUDGE



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